Madras High Court
Case BriefsHigh Courts

Madras High Court: Expressing that, Power of discretion is to be exercised to mitigate the injustice if any occurred to the litigants, S.M. Subramaniam, J., remarked that,

Litigations/appeals are expected to be filed within the period of limitation as contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable.

Petitioner was a senior citizen and suffering from ailments and hence, could not come over to Madurai and make arrangements for filing appeal.

Petitioner’s Counsel stated that the appeal was presented to the Court as early as on 31-7-2008, but the appeal papers could not be traced out in the office of the Court for long years as the papers were returned.

Analysis, Law and Decision

The entire case bundle revealed that there was no proof to establish that the appeal was filed on 31-7-2008.

High Court stated that,

Mere affixing a seal of the Madras High Court is insufficient as such filing of papers must be registered in the appropriate register maintained by the Registry.

Bench expressed that,

Uncondonable delay cannot be condoned in a routine manner. Law of limitation is substantive.

Elaborating the reasoning, High Court added that the Courts are vested with the power of discretion to condone the delay, that does not mean that enormous delay in instituting the suit or appeal is to be condoned mechanically.

Though, if the reasons are candid and convincing, then the Courts are empowered to exercise its power of discretion for the purpose of condoning the delay.

Time limits

Question may arise about the purpose and object of the law of limitation as the refusal of condonation of delay sometimes causes denial of rights to the litigants. However, there is a definite purpose for the prescription of the period of limitation for the institution of litigations/appeals.

The Bench also added that,  If any citizen of our great Nation is allowed to exercise his right at his whims and fancies without reference to the law of limitation, circumstances may arise that the rights of other fellow citizens are prejudiced or infringed. Rights cannot be exercised in an unguided manner.

Any citizen, who slept over his right, cannot wake up one fine morning and knock the doors of the Court for redressal of his grievances

Adding to the above analysis, Court stated that, Exceptions can never be adopted as a rule and they are to be exercised exceptionally and condoning long delay in a mechanical manner by the Courts cannot be considered as a good practice.

Imposing Heavy Costs

Costs cannot be in terms with reference to the number of days of delay. It is not an arithmetic principle, where long delay is to be condoned with heavy costs and meagre delay is to be condoned with meagre costs. Such a principle is opposed to public policy and therefore, this Court is not prepared to accept such a concept of imposing heavy costs for condoning enormous delay by violating the law of limitation, which is substantive and also the legal principles to be followed.

Lastly, the High Court held that,

If the delay is about three months or upto five or six months, the Courts may take a lenient view, but not in respect of longer delay.

Hence, the Court declined to condone the delay of 2575 days in filing the appeal. [T Lakshmi v. M. Vasantha, 2022 SCC OnLine Mad 1406, decided on 30-3-2022]

Advocates before the Court:

For Appellants: Mr A.C. Arun Kumar

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Rachna Gupta (Judicial Member) allowed an appeal which was filed against the order of Commissioner (Appeals) in which he had wrongly invoked the principle of unjust enrichment while rejecting the refund of the appellant.

The appellant in the present case had imported 3000 MT of Aluminium Nitrate from Indonesia. At the time of filing home consumption clearance, appellant had claimed preferential rate of Basic Customs Duty (BCD) @ 5% under Notification No.46/2011 Entry No. 358(1) against BCD @ 7.5%. However, at that time, he could not produce original certificate of origin with authentic signatures. Accordingly, provisional assessment was resorted for. The bills were, therefore, assessed provisionally in terms of section 18(1) of the Customs Act, 1962, however, by extending the aforesaid notification benefit. The appellant later submitted the original certificate of origin along with original revenue deposit challans with the request for finalization of the provisional assessment. The appellant also requested for refund of aforesaid revenue deposit of Rs.15,09,146/-. The original authority after examining the applicability of principles of unjust enrichment and considering the certificate issued by the appellant’s Chartered Accountant, sanctioned the aforesaid refund. However, review order passed under section 129D(2) of the Customs Act, 1962 that the Deputy Commissioner of Customs, Visakhapatnam was required to file an appeal against the said Order-in-Original. The said appeal of the department had been adjudicated thereby setting aside the Order-in-Original. Being aggrieved, the importer had filed the present appeal before this Tribunal.

The appellant had submitted that the BCD as was applicable to the import of Aluminium Nitrate made by the appellant was @ 5% in terms of Notification No.46/2011 Entry No. 358(1). However, a provisional assessment was resorted to for want of certain documents and customs duty @ 7.5% was paid by the importer. At the time of final assessment, the benefit of notification was extended. Accordingly, the appellant became entitled for the refund of the duty paid to the extent of excess 2.5% thereof.

The Tribunal assessed the two findings given by the Commissioner (Appeals) while rejecting the refunds:

  1. i) that the appellant/assessee has not proved constructively with the supporting documents that the duty paid is not charged to the buyer and whether there was any change in the price of the goods produced by them to that effect.

(ii) CA certificate is not sufficient to show that burden has not been passed on to other persons.

The Tribunal was of the view that the said document was opined to be a sufficient document to ascertain whether the incidence of duty has or has not been passed on to the customers as the cost of the product because the books of account are the only way for examining the same. If an amount is shown in books of accounts as cost of material the amount has to be debited from the cash account and has to be credited towards expenses of materials account in the profit and loss statement. On the other hand, if the burden of duty has been borne by the manufacturer itself, the amount shall be debited in the cash account and a credit as receivables shall be shown in the books of accounts. The tribunal drew support from various decisions of Uniword Telecom Ltd. v. CCE, 2017 (358) ELT 666 (Tri-All.), Savita Oil Technologies Ltd. v. CCE, 2017 (358) ELT 331 (Tri-Mumbai).

The Tribunal distinguished the decisions of Hindustan Petroleum Corprn. Ltd. v. Commissioner of Customs, 2015 (328) ELT 410 and UOI v. Solar Pesticides (P) Ltd., 2000 (116) ELT 401 (SC) stating that they were wrongly applied to the facts of the present case which simply talks about the documents to be mandatorily provided in terms of section 27(1A) of the Customs Act to prove that there has been no unjust enrichment.

The Tribunal allowed the appeal and finally held that the findings of Commissioner (Appeals) while rejecting the refund of Rs.15,09,146/- which admittedly was an excess amount paid by the appellant, over and above his liability of paying BCD @ 5% in terms of Notification No. 46/2011 Entry No. 358(1), was not sustainable.[Indian Explosives (P) Ltd. v. Commr. Of Customs & ST, Customs Appeal No. 30258 of 2019, decided on 03-09-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., held that:

The senior citizen can approach the Deputy Commissioner/DM for eviction from any property over which he/she enjoys rights and such order will be appealable to the Divisional Commissioner.

Petitioner who is the wife of respondent 4 and daughter-in-law of respondent 3 filed the present petition against the order of the District Magistrate.

Petitioner was evicted from the suit in the said order and said order was passed by the District Magistrate while exercising powers under Rule 22(3)(1) of the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009.

Petitioner’s counsel submitted that the writ petition was ought to be entertained as an appeal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which can only be filed by a senior citizen.

Further, it was added that there appears to be some confusion as to which orders are appealable, to which forum and by whom. It is necessary to set out the provisions which are applicable separately qua maintenance and eviction proceedings.

Maintenance Proceedings 

The maintenance proceedings for the welfare of parents and senior citizens are concerned under Section 2(j), the said Act provides that the ‘Tribunal’ would be the forum for exercising the first jurisdiction.

‘Tribunal’ is defined under Section 2(j) as the ‘Maintenance Tribunal’ constituted under Section 7.

 Hence, the Maintenance Tribunal under Section 7 of the Act would be the ADM or the SDM of the concerned sub-division.

Further, it was added that, filing of appeals qua maintenance-related matters are governed by Section 15 of the Act.

Bench while referring to the decisions of Naveen Kumar v. GNCTD, WP (C) No. 1337 of 2020, decided on 05-02-2020; Amit Kumar v. Kiran Sharma, WP (C) No. 106 of 2021, decided on 06-01-2021 and Shumir Oliver v. GNCTD, WP (C) No. 2857 of 2021, decided on 03-03-2021, held that any ‘affected person’ can prefer the appeal and not just a senior citizen or parent.

Procedure in respect to maintenance would be to first approach the concerned ADM/SDM concerned and thereafter, the Appellate Tribunal which is presided over by the Deputy Commissioner of the District concerned.

With respect to eviction proceedings, the same are governed by the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2016.

Hence as per The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules (Amendment) Rules, 2016, a senior citizen can approach the Deputy Commissioner seeking eviction of the son, daughter or any other legal heir from his ‘self-acquired property’ on account of his non-maintenance and ill-treatment.

With regard to eviction, the first forum would be the Deputy Commissioner/District Magistrate, therefore, a challenge to the order of Deputy Commissioner would lie before the Divisional Commissioner.

Act and the various Rules and Notifications thereto are not readily available to litigants, as also lawyers, in the form of a separate publication. This may be one of the causes for confusion in filing multiple writ petitions directly against the first order of the tribunal or, in the case of eviction, from the order of the Deputy Commissioner/DM.

High Court also added to its observations that, the appellate forum and the limitation period is not within the knowledge of litigants and sometimes even lawyers, it is directed that the following two sentences be added at the end of every order passed by the initial forum i.e. the Tribunal under Section 7 of the Act or, in eviction cases, the Deputy Commissioner under Rule 23(3) of the Rules. 

For maintenance cases:

“The present order would be appealable, under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 read with Rule 16 of The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, to the Appellate Tribunal, presided over by the Deputy Commissioner of the concerned District. The period of limitation for filing of appeal is 60 days.”

For eviction cases:

“The present order would be appealable under Rule 22(3)(4) of The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, as amended on 19th December, 2016 before the Divisional Commissioner, Delhi. The period of limitation for filing of appeal is 60 days.”

While parting with the present decision, High Court held that the present order be communicated to all the Maintenance Tribunals and Appellate Tribunals, as also the concerned Presiding Officers who are exercising powers under the Rules.

“…order be also sent to the worthy Registrar General for placing a copy at the filing counter so that whenever writ petitions are filed against original orders, the Registry can also inform lawyers of the availability of the alternate remedy, in case they wish to avail of the same.”

 Impugned Order be appealable to the Divisional Commissioner under Rule 22(3)(4).

The petition was accordingly permitted to be withdrawn with liberty to the petitioner to approach the Divisional Commissioner.[Rakhi Sharma v. State,  2021 SCC OnLine Del 1327, decided on 05-03-2021]

Case BriefsSupreme Court

Supreme Court: The bench of AM Sapre and Indira Banerjee, JJ has held that the appellate forum for deciding the appeals arising out of the order passed by the Adjudicating Officer under Section 51 of Foreign Exchange Regulation Act, 1973 (FERA) whether filed prior to 01.06.2000 or filed after 01.06.2000 must be the same, i.e., Appellate Tribunal under Foreign Exchange Management Act, 1999 (FEMA)

Going into the legislative intent behind Section 49 (5)(b) of FEMA, that deals with repeal and saving in relation to the action taken and to be taken under FERA, 1973, the Court noticed that the legislature has equated the Appellate Board constituted under FERA with the Appellate Tribunal constituted under FEMA for disposal of the appeals filed under Section 52(2) of FERA against an order passed under Section 51 of FERA which were   pending   before   the   Appellate   Board   which was dissolved on 01.06.2000.  Such appeals stood transferred from the Appellate Board to the Appellate Tribunal for their disposal in accordance with law.

The Court noticed that the Special Director (Appeals) is subordinate in hierarchy to the Appellate Tribunal prescribed under Section 49(5)(2) of FEMA and hence, said that if the argument that the appellate forum in this case for filing appeal is ­ “Special Director (Appeals)” and not the “Appellate Tribunal” under FEMA is accepted, then it will result in anomalous situations which will again be incongruous. The Court explained:

“the orders passed by the Appellate Tribunal in the appeals, which stood transferred to the Appellate Tribunal by virtue of Section 49 (5)(b), are appealable to the High Court under Section 35 of FEMA whereas the orders passed by the Special Director (Appeals) in the   appeals   filed   after   01.06.2000 are not appealable to the High Court under Section 35 of FEMA. So, against the same order, one appellant has a right of appeal to the High Court but the other appellant has no such right of appeal because he suffered   dismissal   of his appeal from Special Director (Appeals) against whose order appeal does not lie under Section 35 to the High Court.”

It was, hence, held that it was not possible to hold that one appeal would be maintainable before the Appellate Tribunal and the other appeal arising out of similar order would be maintainable before the Special Director (Appeals),  who is subordinate in hierarchy to the Appellate Board.  [Union of India v. Premier Ltd., 2019 SCC OnLine SC 95, decided on 29.01.2019]

Case BriefsHigh Courts

Allahabad High Court: A Full bench comprising of CJ Dilip B. Bhosale, Ramesh Sinha and Yashwant Varma, JJ. struck down the proviso to Section 14A (3) of the Scheduled Castes/ Schedules Tribes (Prevention of Atrocities) Amendment Act, 2015, which imposed a 180-day bar for preferring appeals against judgments, sentences, bail orders and other orders passed by Special Courts under the SC/ST Act and gave a comprehensive interpretation to questions arising from Section 14A of the Act.

The Court took suo motu cognizance of the validity of Section 14A of the Act, in view of divergent opinions of two Single Benches of the court. The present PIL was tagged along with another PIL, numbered as Criminal Writ-PIL No. 11 of 2018, challenging the validity of Sections 14A (2) and 14A (3) of the Act for being violative of Articles 14 and 21 of the Constitution of India. The provisions relevant to the present matter were:

  • Section 14A(1) stating that appeals from judgments, sentences or orders, except interlocutory orders, of a Special/Exclusive Court, trying SC/ST cases would lie to the High Court on both facts and law.
  • Section 14A(2) stating that appeals from bail orders of the Special/ Exclusive Court would lie to the High Court, even if it is an interlocutory order.
  • Section 14A(3) stating that an appeal under this Section should be preferred within a period of 90 days (extendable on court’s discretion). However, the second proviso to this clause laid down that the limitation period to not be extendable beyond 180 days.
  • Section 14A(4) providing for disposal of every appeal preferred under sub-section (1) within three months from the date of admission of appeal.

The aforesaid provisions had an overriding effect over provisions of the Code of Criminal Procedure (CrPC).

The court noted that Section 14A primarily created an appellate forum at the level of the High Court to challenge any judgment, sentence or order, not being an interlocutory order, including an order refusing or granting bail. It was noted that though an appeal is not maintainable against interlocutory orders since an interlocutory order refusing or granting bail pertains to the liberty of the accused, an exception had been carved against the said general exclusion.

The challenge to Section 14A(2) was on the sole ground that Section 14A (2) ousted the concurrent jurisdiction of High Court under Section 439 CrPC in matters pertaining to grant of bail. The said challenge was dismissed holding that SC/ST Act is a special statute and as per the general principles of statutory construction, its non-obstante clauses had to be given overriding effect over a general enactment such as CrPC.

The Bench struck down the second proviso to Section 14A (3) holding it to be manifestly arbitrary in as much as it took away the salutary right of the first appeal, an integral facet of fair procedure under Article 21. It was held that absence of discretion in the court to consider condonation of delay even on the existence of sufficient cause rendered the said proviso wholly capricious, irrational and excessive.

The Bench further noted that the inherent and constitutional powers of High Court under Articles 226 and 227 of the Constitution were not ousted by Section 14A of the Act. However, a note of caution was given by the Bench stating that courts must exercise the principle of judicial restraint and allow such powers to be invoked only in exceptional and rare cases to secure justice.

The Court also noted thatthe scheme of the Act showed the manifest legislative intent to oust revisional powers of High Court under Section 397 CrPC and therefore Section 14A eclipsed the revisional jurisdiction of High Court.

Another question posed before the court was that since Section 14A of the Act, introduced by the amendment in 2015, came into effect from 26-1-2016, whether offences committed before the said date would also be subject to Section 14A. It was clarified that applicability of Section 14A would depend on the date of the judgment or order sought to be assailed. If the judgment sought to be appealed against was passed after the 26-01-2016, then only would Section 14A be triggered. It was further clarified that even if the impugned judgment was passed before 26-01-2016 but if the appeal against it is preferred after the said date, Section 14A would apply.

The 2015 amendment to SC/ST Act empowered Exclusive Special Courts established under the amended provisions to directly take cognizance of offences under the Act. The last question for determination before the Bench was as to whether the power to directly take cognizance of offences shall be exercisable by the existing Special Courts (constituted under the 1989 Act). On this point, the court held that the existing Special Courts did not have jurisdiction to directly take cognizance of offences; such existing courts could take cognizance of offences under the Act only after the concerned Magistrate commits the case as per Section 193 of CrPC. However, it was clarified that the same not be construed to be a disrobing of these courts’ powers to try offences under the Act.

The PIL was disposed of answering the issues framed for the consideration of the Full Bench, as detailed above, along with a parting observation that although the Amending Act came into force with effect from 26-01-2016, neither any Exclusive Special Courts had been established nor had any Special Courts been designated till the date of order. The Bench directed the State government to initiate the consultative process, as envisaged under Section 14 of the Act, to ensure that Exclusive Special Courts and Special Courts are constituted and designated within a period of eight weeks from the date of order. [Provision of Section 14A of SC/ ST (Prevention of Atrocities) Amendment Act, 2015, In Re; Criminal Writ – PIL No. 8 of 2018, decided on 10-10-2018]