Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): In an appeal against an order passed by the State Commission West Bengal, the National Consumer Disputes Redressal Commission (“the Commission”) considered whether the period of limitation commences from the date of knowledge of the order or from the date of receipt of the free certified copy of the order appealed against.

The State Commission had rejected the petitioner’s appeal on grounds of limitation. The district forum’s order, which rejected the petitioner’s claim due to the expiry of limitation period, was passed on August 8, 2017, but the petitioner applied for a certified copy only on November 4, 2017, and appealed to the State Commission 115 days after the date of limitation for such appeal. The State Commission was not satisfied with the petitioner’s explanations for delays at every step and dismissed the petition.

The petitioner argued that the delay in filing for the appeal was an unintentional as the District forum had violated Rule 5(10) of the West Bengal Consumer Protection Rules, 1987 which reads:

“Orders of the District Forum shall be signed and dated by the members of the District Forum and shall be communicated to the parties free of charge.”

The District Forum failed to provide the petitioner with a certified copy of the order free of cost, and further owing to financial difficulties arising as a result of demonetization, there was a delay in filing for the certified copy.

The Commission referred to the Supreme Court’s judgment in Housing Board Haryana v. Housing Board Colony Welfare Association, (1995) 5 SCC 672), where it was held:

“The date of pronouncement of the order in the open Court by itself cannot be the starting point of determining the period of limitation under Section 15 of the Act. It has also to be shown that the order of the District Forum so pronounced was duly signed and dated by the members of the District Forum constituting the Bench and the same was communicated to the parties free of the charge.

[M]ere pronouncement of an order in the open Court will not be enough but under the scheme of the Rules a copy of the said order has also to be communicated to the parties affected by the aid order so that the party adversely affected therefrom may have a fair and reasonable opportunity of knowing that text, reasons and contents thereof so as to formulate grounds of attack before the appellant or higher forums. In the absence of such communication of signed and dated order, the party adversely affected by it will have no means of knowing the contents of the order so as to challenge the same and get it set aside by the appellate authority or the higher Forums.”

Hence the Commission reaffirmed the duty of District Fora to supply certified copies free of cost to the parties in interest of consumers. The revision petition was allowed and the State Commission was directed to decide the matter as per law. [Rita Kesh v. Biswanath Singha,2018 SCC OnLine NCDRC 120, decided on 07-05-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of K. Somashekar, J., decided a criminal appeal, wherein order of acquittal of the accused passed by the trial court was upheld holding that the recovery of loan in the given case was hit by limitation.

The petitioner was prosecuted for offence punishable under Section 138 of Negotiable Instruments Act, 1881. The complainant alleged that the accused took a hand loan from him and issued cheques in lieu thereof. However, when the said cheques were presented in the bank, they were dishonoured and returned with a memo marked ‘insufficient funds’. The complainant issued a demand letter to the accused as required by the Act. However, the accused did not repay the loan even after the demand letter was issued to him. Consequently, the accused was prosecuted under the Act. The trial court, inter alia, found that the time gap between the giving of loan by the complainant to the accused and presenting of cheques for recovery thereof, was more than three years. Trial court held the case to be hit by limitation and acquitted the accused.

The High Court perused the record as well as provisions of the NI Act and the Limitation Act. The Court observed that the limitation period for recovery of a hand loan is three years from the date the loan is given. The Court found that, in the instant case, the loan was given in the year 2004 and the cheques were presented for its recovery only in the year 2008. The Court also held that there was no part repayment of the loan to the complainant by the accused, nor the accused acknowledged the presence of debt in this period to start a fresh period of limitation. The High Court, inter alia, held that the case of the complainant was barred by limitation of three years as provided in the Limitation Act.

Accordingly, the petition filed by the complainant against the order of acquittal of the accused passed by the trial court, was dismissed. [K.N. Raju v. Manjunath T.V., Crl. Appeal No. 302 of 2010, decided on 16.3.2018]

Case BriefsHigh Courts

Orissa High Court: An order of revision of assessment passed against the petitioner by the Commissioner of Sales Tax was set aside by a Division Bench comprising of Vineet Saran, CJ and B.R. Sarangi, J., holding that under Rule 80 of the Orissa Sales Tax Rules, the revision proceedings has to be concluded within a period of three years as provided for in the said provision.
The petitioner was a registered dealer dealing in petrol, diesel, kendu leaves and jute. He was assessed for sales tax for the year 1991 by the Sales Tax Officer, who allowed a claim of exemption as prayed for by the petitioner. Subsequently, on receipt of opposition from the auditing party, such exemption was partly disallowed in the re-assessment proceeding on 25.08.1993. Assistant Commissioner of Sales Tax re-opened the said assessment and on 05.09.1996, passed an order wherein the petitioner was held liable to pay the entire amount of exemption; under Rule 80 of the Orissa Sales Tax Rules. Against the said order, the petitioner preferred an appeal before the Commissioner of Sales Tax, who vide order dated 05.06.1999 dismissed the appeal. Hence, the petitioner filed the instant petition. Learned counsel for the petitioner contended that the order of revision was beyond the prescribed period of limitation as provided under Rule 80, which provides that a suo motu revision initiated by the Commissioner of Sales Tax has to be concluded within a period of three years from the passing of the order of Sales Tax Officer. On the contrary, the counsel for the respondent contended that the said period of limitation is only applicable for the initiation of proceedings and does not take into account its conclusion.
In order to settle the controversy, the High Court perused the provisions of the Orissa Sales Tax Act and Rules, and was of the opinion that Rule 80 of the OST Rules prescribes a limitation of three years in which the revision by the Commissioner of Sales Tax has to be initiated and concluded. The purpose of Rule 80 is to give finality to the suo motu proceedings initiated by the Assistant Commissioner in a specified period. Any interpretation contrary to the one that is mentioned above would mean that even though initiation of proceedings for revision may be done within three years, final order can be passed after years of such initiation which would keep the matter hanging for years together, which could not have been the intention of the Act.
In view of the aforesaid, the High Court was of the opinion that the order passed by the Assistant Commissioner as well as the Commissioner of Sales Tax mentioned above were beyond the period of limitation as provided for in the Orissa Sales Tax Rules. Hence, the said orders were quashed and the petition was allowed. [Sagarmal Agarwalla v. CST, 2018 SCC OnLine Ori 40, order dated 10-01-2018]

Case BriefsHigh Courts

Calcutta High Court: The Bench of Siddhartha Chattopadhyay,J. rejected a revisional application by holding that, if a statute specifies a maximum period of investigation, then the Court cannot take that right off and also the Court cannot direct any authority further, until the statutory period of limitation gets over.

A complaint was filed stating that a press conference was conducted by the opposite parties to malign some political parties  in which a few photographs were displayed of certain politicians offering sweets to each other and the said pictures were released in the public domain. In spite of complaining to several authorities and getting no satisfactory response and action being taken, this revisional application was filed.

The complainant reached Chief Metropolitan Magistrate with the same issue, for which the Chief Metropolitan Magistrate did not apply his mind and decided that the offence does not lie under the IT Act. The State finding was dismissed by the court at the initial stage of an issue.

Concluding the issue, the Court held that an issue like this requires scientific investigation, which clearly cannot be expected from a police officer, so for that reason the intimation given by O.C. cyber crime in regard to the legal opinion being sought on the same has to be due regarded and allegation on police for rejecting the complaint outright is not correct, as, cyber law is not dependent on any other code of law and further the Court has to also abide with the statutory limitation, as it cannot go beyond that, for which the investigation has to be concluded in terms of Section 167(5) CrPC. [Jay Prakash Majumdar v. State of West Bengal, 2017 SCC OnLine Cal 16163 decided on 05-12-2017]

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]

Hot Off The PressNews

Supreme Court: The bench of L. Nageswara Rao and SA Bobde, JJ appointed Senior Advocate Amrender Sharan as amicus curiae to assist the Court in the plea seeking re-investigation of the assassination of Mahatma Gandhi.  The petition filed by Mumbai-based Dr Pankaj Phadnis, a researcher and a trustee of Abhinav Bharat, has sought reopening of the probe on several grounds, claiming it was one of the biggest cover-ups in history.

The bench that, while hearing the plea, said that nothing can be done in law in the case which has been decided long ago, told the amicus that this observation was not binding on him to make an assessment of the matter and posted it for further hearing on October 30.

The petitioner said that appeals filed by the convicts in the assassination case were dismissed in 1949 by the East Punjab High Court, following which the Privy Council had sent the matter back on the ground that the Supreme Court of India will come into existence in January 1950. He also said that another person might be involved in firing shots at Mahatma Gandhi. To which the Court responded by saying:

“You say that there was someone else, a third person who killed him (Gandhi). Is that person alive today to face the trial?”

The petitioner responded by saying that he did not know if that person is alive but investigation should be ordered to ascertain the truth. He also said that there was a possibility that the assassination was carried out by an organised body.

In the petition, the petitioner has also questioned the ‘three bullet theory’ relied upon by various courts of law to hold the conviction of Nathuram Godse and Narayan Apte, who were hanged to death on November 15, 1949, and Vinayak Damodar Savarkar who was given the benefit of doubt due to lack of evidence. He has claimed that the Justice J L Kapur Commission of Inquiry set up in 1966 was not able to unearth the entire conspiracy that had led to the killing of Gandhi.

Mahatma Gandhi was shot dead at point blank range in New Delhi on January 30, 1948 by Nathuram Vinayak Godse.

Source: PTI

Case BriefsSupreme Court

Supreme Court: Determining the period of limitation for filing a suit or claim under the Fatal Accidents Act, 1855, the bench of Kurian Joseph and R. Banumathi, JJ held that when a suit for compensation is filed under the Fatal Accidents Act, 1855, the same has to be filed within the period of two years as prescribed under Article 82 of the Limitation Act, 1963.

The Court was hearing the case where the deceased died due to electrocution after coming in contact with the live electricity wire while discharging his duties as a driver of a bus in the year 2008. His widow sought Rs.22,68,000/- towards damage under the 1855 Act, however, the District Judge dismissed the claim and held that as per Article 82 of the Limitation Act, 1963, the claim should have been presented within two years from the date of death of the person. The Rajasthan High Court also upheld the said decision.

The Supreme Court held that Part VII of the Schedule deals with the “suits relating to tort”, therefore, when a suit for compensation is filed under the Fatal Accidents Act, 1855, the same has to be filed within the period of two years as prescribed under Article 82 of the Limitation Act, 1963. However, the Court invoked it’s jurisdiction under Article 142 of the Constitution of India and granted Rs. 7 lakhs as compensation. The Court gave the verdict after considering the peculiar facts of the case after taking note of the fact that Jodhpur Vidyut Vitran Nigam Limited has a scheme under the Rules now applicable wherein the legal heirs of the deceased person are entitled to a one-time compensation of Rs. 5 lakhs. [Damini v. Managing Director, Jodhpur Vidyut Vitran Nigam Limited, 2017 SCC OnLine SC 1105, decided on 14.09.2017]

Case BriefsSupreme Court

Supreme Court: Deciding an important question of law as to whether provisions of Section 5 of the Limitation Act, 1963 are applicable in respect of revision petition filed in the High Court under Section 81 of the Assam Value Added Tax Act, 2003 (VAT Act), the Court held that the court cannot interpret the law in such a manner so as to read into the Act an inherent power of condoning the delay by invoking Section 5 of the Limitation Act so as to supplement the provisions of the VAT Act which excludes the operation of Section 5 of the Limitation Act by necessary implications.

Taking note of the fact that Section 84 of the VAT Act made only Sections 4 and 12 of the Limitation Act applicable to the proceedings under the VAT Act, the Court noticed that the legislative intent behind the same was to exclude other provisions, including Section 5 of the Limitation Act. Section 29(2) stipulates that in the absence of any express provision in a special law, provisions of Sections 4 to 24 of the Limitation Act would apply. If the intention of the legislature was to make Section 5, or for that matter, other provisions of the Limitation Act applicable to the proceedings under the VAT Act, there was no necessity to make specific provision like Section 84 thereby making only Sections 4 and 12 of the Limitation Act applicable to such proceedings, in as much as these two Sections would also have become applicable by virtue of Section 29(2) of the Limitation Act.

The bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ said that the VAT Act is a complete code not only laying down the forum but also prescribing the time limit within which each forum would be competent to entertain the appeal or revision. The underlying object of the Act appears to be not only to shorten the length of the proceedings initiated under the different provisions contained therein, but also to ensure finality of the decision made there under. Hence, the application of Section 5 of the Limitation Act, 1963 to a proceeding under Section 81(1) of the VAT Act stands excluded by necessary implication, by virtue of the language employed in section 84. [Patel Brothers v. State of Assam, 2017 SCC OnLine SC 19, decided on 04.01.2017]

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]