Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Dispute Redressal Commission:  The Commission held that if a complaint is filed beyond a period of two years from when the cause of action has happened the same will not be entertained, unless there are sufficient reasons for condoning the delay in filing the appeal.

The Consumer Forum through a Division Bench, comprising of, B.C. Gupta, Presiding Member and S.M. Kantikar, Member dismissed an appeal filed by M/S. Kiran Gems Pvt. Ltd. The brief facts, being that the appellant company had purchased an insurance policy from the respondent, to cover all the damages that may arise in the normal course of business ,but upon the actual event of an abnormal activity, the Insurance Company did not entertain the full claim of the appellant and the same being under dispute between the two parties, in the present case. The appellant also contested that the Insurance company owed a total sum of Rs 35,15,014 to them, and further argued that the dismissal of their previous complaint regarding the same matter (Miscellaneous Application, MA/90/2011) is not valid.

The Commission held that the appeal was filed beyond the mentioned time period of 2 years and because of this delay the appellant cannot be heard. The Bench also referred to the judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, (2011) 14 SCC 578 in which the Hon’ble Apex Court held that:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras.”

The Bench ordered the dismissal of the appeal because there was a delay of 2178 days in filing the complaint and no remarkable justification was given by the appellant while explaining this delay.  [M/s Kiran Gems Pvt. Ltd. v. Oriental Insurance Co. Ltd., Appeal Number 1718 of 2016, decided on 12-12-2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal: In the judgment delivered by S.J. Mukhopadhaya (Chairperson), AIS Cheema (Judicial Member) and Balvinder Singh (Technical Member) dismissing the appeal against the impugned order of the Competition Commission of India (CCI) dated 8-2-2017. Mr. Subodh Kumar Sharma, the appellant had filed a complaint against Gateway Terminals India Pvt Ltd (Respondent 2) and Gujarat Pipavav Port Ltd. (Respondent 3) for contravention of sub-section 3(4) and Section 4 of the Competition Act, 2002 and contending that the respondents having a major market share for providing container terminal services were deliberately diverting traffic of ships to Papavav ports for commercial advantages.

The Tribunal held the observations of CCI, that ‘the market share of the first respondent has been declining and such decline does not make it to be in a dominant position’, to be correct. There were thirty three other container freight station which were acting as a competitive constraint for the respondent The appellants however failed to prove that the respondent blocked the terminals at Jawahar Lal Nehru Ports forcing ships to dock at Papavav and the Tribunal further held that the mere reliance on paper book is not enough to invoke the Act for the same.

No substance was found by this Tribunal in the submissions of the appellant thus no interference in the impugned order was made. The appeal was dismissed with costs quantified at Rs 1 Lakh to be equally divided and paid by appellant to Respondents 2 and 3. [Subodh Kumar Sharma v. Competition Commission of India, Competition Appeal (AT) No. 04 of 2017, order dated 5-12-2017]

Case BriefsHigh Courts

Rajasthan High Court: A writ petition was filed to examine constitutional validity of Rule 63(4) of the Rajasthan Minor Mineral Concession Rules, 2017 (the Rules of 2017). The sub-rule aforesaid provides that an appeal shall be filed within three months of the date of communication of the order appealed against, provided that an appeal may be admitted after the said period if the appellate authority is satisfied that the appellant has sufficient cause for not filing the appeal within the said period but the appeal shall not be admitted after expiry of six months from the date of order appealed against.
The learned counsel for the petitioner argued that under the Mines and Minerals (Development and Regulation) Act, 1957 and its corresponding Rules, there is no restriction for not entertaining an appeal after expiry of the extended three months. He also contended that the proviso to sub-rule (4) of Rule 63 of the Rules of 2017 was discriminatory as well as arbitrary to the extent it restrained from admitting an appeal after expiry of six months from the date of the order appealed against.

The High Court finding the argument of the learned counsel devoid of any merit and thus dismissing the writ petition, laid down that

“It is well settled that validity of a subordinate legislation can be challenged only if that lacks legislative competence, violates fundamental rights or any of the provisions of the Constitution of India, inconsistent with the provisions of the parent statute i.e. the statute under which subordinate legislation is made, or exists the limits of the authority conferred upon it by the parent statute and if such law is manifestly arbitrary or unreasonable to conclude that the legislature never intended to extend authority to make such rules/regulations. Rule 63 of the Rules of 2017 provides a remedy of appeal to the aggrieved person and as per its proviso the appellate authority is empowered to condone the delay up to the extent of three months beyond the limitation prescribed. The check for filing appeals subsequent thereto, in our considered opinion, is not at all unjust or arbitrary or is in conflict with any of the eventualities in which validity of a subordinate legislation can be challenged.”

[Suraj Mal v. State of Rajathan,  2017 SCC OnLine Raj 2598, decided on 14.10.2017]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a writ petition filed under Articles 226 and 227 of the Constitution praying to call for records and quash the orders passed by the State Transport Appellate Tribunal and the State Transport Authority, a Single Judge Bench comprising of S. Sujatha, J. held that the statutory remedy of an appeal available to an aggrieved person cannot be curtailed by narrower interpretation of the word ‘aggrieved person’, relating only to the parties concerned in the proceedings.

The petitioners as well as the second respondent were the holders of stage carriage permits. On an application filed by the second respondent, the Authority directed the variation of permit conditions of the said respondent. Aggrieved by the same, the petitioners preferred appeals under Section 89 of the Motor Vehicles Act, 1988. The Tribunal rejected the appeals as not maintainable. Hence, these petitions.

Learned counsel for the petitioners submitted that ‘Any person’ accruing under Section 89 of the Act, has to be interpreted with reference to ‘aggrieved person’. A rival operator aggrieved by the order of variations of permit granted, prima facie, is an aggrieved person. The appeal remedy under Section 89 cannot be denied on mere technicalities.

The main question before the Court was, whether the appeals filed by the petitioners are maintainable under Section 89 of the MV Act? The Court held that any person aggrieved by any variation or curtailment or extension of conditions of the permit can be construed as an ‘aggrieved person’. The rival operators, who were aggrieved by any such order in favor of a service provider, fall within the expression ‘any person aggrieved’ as provided under Section 89 of the Act. It was further held that, for the reasons aforesaid, the orders impugned in these petitions were not sustainable and quashed. The petitions were allowed and the matters were remanded to the Tribunal to consider the appeals on merits and to pass appropriate orders. [N.S. Abdul Gafoor v. The Karnataka State Transport Authority, 2017 SCC OnLine Kar 1565, order dated 15.03.2017]


Hot Off The PressNews

Supreme Court: Rejecting the plea of Naveen Jindal seeking permission to challenge the Trail Court’s order in Coal Scam, the 3-judge bench headed by Madan B. Lokur, J reiterated that High Courts cannot entertain the appeals challenging the orders of Special Courts. Such pleas can be entertained only by the Supreme Court.

Congress Leader Naveen Jindal had sought for challenging the Trail Court’s order before the Delhi High Court in the Coal Block allocation case where he was charged with corruption, criminal misconduct, cheating and criminal conspiracy in relation to the coal blocks that were allocated to the Jindal Group of companies.

Refusing to entertain his plea, the Court said that it will not revisit it’s July 25, 2014 order which had said that challenge to any interim order of the special court during pendency of trial in coal scam cases will be heard only by it.

Source: PTI

Case BriefsSupreme Court

Supreme Court: Explaining the scope of the appellate power of the Supreme Court under Section 130E(b)of the Customs Act, 1962, the Bench of Ranjan Gogoi and Ashok Bhushan, JJ enumerated certain conditions that need to be fulfilled before admitting any case under the said provision.

The Conditions are as follows:

  • It is a sine qua non for the admission of the appeal before this Court under Section 130E(b) of the Act that the question raised or arising must have a direct and/or proximate nexus to the question of determination of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty.
  • The question raised must involve a substantial question of law which has not been answered or, on which, there is a conflict of decisions necessitating a resolution.
  • If the tribunal, on consideration of the material and relevant facts, had arrived at a conclusion which is a possible conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter.
  • The tribunal had acted in gross violation of the procedure or principles of natural justice occasioning a failure of justice.

Stating that the above-mentioned list should not be treated to be exhaustive, the Court said that Section 130E(b) of the Act provides for a direct appeal to the Supreme Court against an Order of the appellate tribunal, broadly speaking, on a question involving government revenue. This seems to be in view of the fact that the order that would be under appeal may go beyond the inter se dispute between the parties and effect upon a large number of assessees. The issue, in such an event, surely will be one of general/public importance.

Noticing that Chapter IV of Part V of the Constitution expressly limits the appellate jurisdiction of the Supreme Court to (i) a substantial question of law as to the interpretation of the Constitution, (ii) a substantial question of law of general importance, the Court said that while construing the extent of the appellate jurisdiction to be exercised by the Supreme Court under a statutory enactment, the role of the Supreme Court as envisaged by the Constitution cannot altogether be lost sight of. Hence, the jurisdiction of the Supreme Court under Section 130E(b) of the Act or the pari materia provisions of any other Statute would be in harmony with those contained in Chapter IV of Part V of the Constitution. [Steel Authority of India v. Designated Authority, Directorate General Of Anti-Dumping & Allied Duties, 2017 SCC OnLine SC 409, decided on 17.04.2017]


Case BriefsHigh Courts

Bombay High Court: While deciding upon the issue framed by the Division Bench of this Court that whether an appeal under Section 19(1) of the Family Courts Act, 1984 will be governed by the period of limitation under Section 19(3) of the 1984 Act or whether the period of limitation provided under Section 28(4) of the Hindu Marriage Act, 1955 will apply to such appeal; a three-Judge Bench of the Court comprising of Naresh H. Patil, R.D. Dhanuka and Sadhana S. Jadhav, JJ., considering the schemes and the legislative intent of the aforementioned enactments, held that for an appeal filed under Section 19(1) of the Family Courts Act, 1984, period of limitation prescribed under Section 28(4) of the Hindu Marriage Act, 1955 shall apply. The Court further stated that it would not be correct to apply different periods of limitation to orders passed by the Family Courts and by the regular Civil Courts as such an approach would frustrate the object of legislation.

Assisting the Court in the case, the Amicus Curiae Aspi Chinoy, put forth before the Court that if the  provisions concerned of the Family Courts Act and Hindu Marriage Act are construed and understood then there exists no conflict between them. It was further submitted that the Family Courts Act, 1984 provides for a special forum to decide matrimonial disputes and it also provides for special rules or procedure in such cases. The non obstante provision in this enactment, namely, Section 20, was not enacted with the intention of impliedly repealing the provisions of the substantive law i.e. the Hindu Marriage Act, 1955. Therefore in this context, the non obstante provision prescribed in Section 20 of the Act of 1984 needs to be construed.

Perusing the submissions of the Amicus Curiae, the Bench observed that harmonious interpretation of the two statutes which can advance the legislative intent must be adopted in the present case. As the Hindu Marriage Act was amended by Parliament in the year 2003, the period of limitation of ninety days was prescribed by a later law which would override the provisions relating to period of limitation prescribed in the earlier enactment i.e. Act of 1984. The Court further observed that the scheme of the enactments of the Act of 1955 and the Act of 1984, in prescribing the period of limitation and non obstante provision provided in the Act of 1984, there is no clear inconsistency between the two enactments. The Court reiterated the principle of interpretation of statutes which clearly states that for giving an overriding effect to a non obstante provision, there should be clear inconsistency between two enactments. Convinced by the submissions of Amicus Curiae, the Court stated that there is no conflict between the Hindu Marriage Act and the Family Courts Act and that a non obstante clause must be given effect to the extent Parliament intended and not beyond the same, it may be used as a legislative device to modify the scope of provision or law mentioned in the said clause. [Shivram Dodanna Shetty v. Sharmila Shivram Shetty, 2016 SCC OnLine Bom 9844, decided on 01.12.2016]

Case BriefsHigh Courts

High Court of Himachal Pradesh : Deciding upon an issue  as to whether Regular First Appeal or Civil Revision or petition under Article 227 of the Constitution  would lie against the order passed by the Wakf Tribunal, the Bench comprising of Mansoor Ahmad Mir, CJ., and Sandeep Sharma, J., held that the Regular First Appeal or Civil Revision or petition under Article 227 is not maintainable against any decision or order whether interim or otherwise, given or made by the Wakf Tribunal, since sub-section (9) of Section 83 of the Wakf Act provides an efficacious alternative remedy to the aggrieved party to invoke the revisional jurisdiction of the High Court against such order/decision of the Wakf Tribunal.

The Court while considering a bunch of petition involving the question as to  maintainability of suit in the civil court against the decision or orders of the Wakf tribunal observed that since the Act provides that the decision of the Wakf Tribunal shall be final and binding hence no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Wakf Tribunal. The Court stated that it is astonishing that the present writ petitions and Regular First Appeals are being preferred by the aggrieved parties before this Court challenging the decisions rendered by the Tribunals constituted under the Act without understanding how such appeals or writ petitions will be entertained because of the existence of the specific bar in terms of Section 83(9) of the Act that no appeal will lie against the decision/order of the Tribunal.

The Court stated that if any person is aggrieved by the decisions/orders of the Wakf Tribunals can invoke the revisional jurisdiction of the High Court hence remedy is provided to the aggrieved person by way of filing revision petition and not by the medium of appeal. The Court also observed it is settled law that suit for eviction from wakf property is triable by a civil court and not by the Wakf Tribunal since the Act does not provide determination of dispute of eviction by the Tribunal. [Mumtaz Ahmad v. State of H.P., 2016 SCC OnLine HP 2603, decided on November 16th 2016]

Case BriefsHigh Courts

Orissa High Court: While deciding upon the challenge to the maintainability of the present matrimonial appeal as per Section 19 of the Family Courts Act, 1984, the Division Bench of B.K. Nayak and K.R. Mohapatra, JJ., held that an ex parte divorce decree is not an interlocutory order, hence an appeal against the same is maintainable under Section 19(1) of the Family Courts Act.

As per the facts of the present case, the appellant filed for decree of divorce in the Family Court, Cuttack under Section 13 of the Hindu Marriage Act, 1955. However due to non-appearance of the respondent wife, an ex parte decree of divorce was passed. The counsel for the appellant N.K. Sahu contended before the court that Section 19(1) of the Family Courts Act starts with a non-obstante clause, thus Section 10 (general appeal) of the same Act is not applicable to the appeals made under Section 19, therefore making the present appeal maintainable. The counsel for the respondent, Prabhat Kumar Mohanty however argued that Section 10 of the 1984 Act provides that procedure laid down in the CPC is applicable to a proceeding under the 1984 Act, and Family Courts shall be deemed to be civil court and for that purpose. Thus provision under Order 43 Rule 1(d) CPC is squarely applicable to the proceedings in a Family Court. Since Order 43 does not provide for appeal against allowing an application under Order 9 Rule 13 CPC, no appeal in the eye of law shall lie under Section 19(1) of the Act.

Perusing the contentions, the Court referred to the provisions in question, namely, Sections 10, 19 and 20 of the Family Courts Act and observed that Section 10 confers a substantive right of appeal to the parties; Section 19 in turn overrides the provisions of appeal under Section 96 or Section 104 CPC; and Section 20 clarifies that the provisions of the Family Courts Act will have an overriding effect, which is inconsistent with the provisions of any other law for the time being in force. The Court further observed that interlocutory orders are in the nature of temporary or interim order which does not touch the important rights and liabilities of the parties. An interlocutory order is only made to secure some end and purpose necessary and essential to the progress of the suit. By no stretch of imagination can the impugned order be said to be an interlocutory order. [Gyanasis Jena v. Rekha Swain2016 SCC OnLine Ori 560, decided on September 8, 2016]

Case BriefsHigh Courts

Allahabad High Court: Deciding upon the issue of rejection of the candidature of the appellants  to the posts of Constables and other equivalent posts in Uttar Pradesh Police on medical grounds, the Court held that  Appendix 5(3)(d) to Rule 15(f) of the U.P. Police Constables and Head Constables Services Rules, 2008 is unreasonable and arbitrary as it does not give sufficient time to file an appeal and secondly, in the absence of reasoned order any appeal is an empty formality, thus, arbitrary and violates Article 14 of the Constitution.

Challenging the vires of the provisions of the 2008 Rules, the petitioners contended that non-furnishing of the reason for rejection was totally illegal and arbitrary. The impugned provision provided that:

“(d) Any candidate not satisfied by his medical examination, shall file an appeal on the day of examination itself. No appeal with respect to the medical examination shall be entertained if the candidate fails to appeal on the day of his medical examination and announcement of the result of the same. The appeal should be disposed of by the medical Board constituted for the purpose within one month of the appeal being filed.”

Perusing the record, the Court observed that in all the cases the candidates’ appeals had been rejected in a mechanical manner without assigning any reason, and the order of the Appellate Medical Board appeared to be a rubber stamp decision, which did not inspire confidence. As the 2008 Rules  provided only an appeal, there was no provision of revision or review. Hence in the absence of a reason, the appeal is illusory inasmuch as the candidate does not know the ground on which it was rejected. The Court observed “that assignment of reasons is imperative in nature. The judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. It is a trite law that even if a statute is silent and it does not provide the principles of natural justice or are not embodied in rule, if by an order a statutory authority affects a citizen with civil or evil consequences, it must meet the test of reasonableness. Civil consequences cover everything that affects a citizen’s civil life.” The Court further observed that is trite that in the realm of diagnosis and treatment there is a scope for genuine difference of opinion. Hence a brief description of the deficiency with a brief reason is necessary to eschew the arbitrariness.

The Court summarised its directions as follows:

  • The provision of Appendix 5(3)(d) to Rule 15 of the Rules, 2008, “on the day of the examination itself. No appeal with respect to the medical examination shall be entertained if the candidate fails to appeal on the day of his medical examination and announcement of the result of the same” is struck down as arbitrary and ultra vires.
  • A fresh Appellate Medical Board shall be constituted within two months, as directed above. A candidate, who is aggrieved by the order of the Medical Board, may file an appeal to the Appellate Medical Board within two weeks. The freshly constituted Appellate Medical Board shall continue in future recruitments also until appropriate amendment is made in the Rules, 2008;
  • In the existing Appellate Medical Board at the Divisional level one doctor shall be of the rank of Professor of a Medical College nominated by the Principal of the concerned college.
  • The petitioners’ appeals shall be considered by the newly constituted Appellate Medical Board.

[Vandana  v.  State of Uttar Pradesh, 2016 SCC OnLine All 619,  decided on August 10, 2016]