Mahabir Sugar Mills v. Commissioner, Gorakhpur .

K.N Singh, J.:— This petition under Art. 226 of the Constitution is directed against the order of the Commissioner, Gorakhpur Division, dated October 25, 1975 condoning the delay in filing appeal under R. 118 of the U.P Sugarcane (Regulation of Supply and Purchase) Rules, 1954.

2. Messrs Mahabir Sugar Mills Ltd. is a private limited company engaged in the manufacture of sugar by vacuum pan process. For the purpose of manufacture, it purchases sugarcane from the cane growers within the area reserved for the Mill under the provisions of the U.P Sugarcane (Supply and Purchase) Act 1953. The Sahkari Ganna Vikas Samiti, Siswa Bazar, is a co-operative society of cane growers which supplied sugarcane to the petitioner Mill in the year 1968-1969. The petitioner mill paid only statutory price as fixed by the Central Government to the cane growers for the cane purchased by it and it refused to pay the agreed price on the ground that there was fall in the recovery of sucrose in the sugarcane. The Society thereupon raised a dispute under R. 108 of the U.P Sugarcane (Regulation of Supply and Purchase) Rules, 1954, hereinafter referred to as the Rules, relating to the payment of price of sugarcane. The Cane Commissioner referred the dispute for adjudication to the Deputy Cane Commissioner who was appointed as arbitrator. The dispute was contested by the petitioner Mill. The arbitrator by his award dated February 13, 1974, rejected the claim of the respondent-society. The award was communicated to the respondent Society on March 4, 1974. The Society presented an appeal against the award before the Cane Commissioner, who returned back the same on the ground that he had no jurisdiction to entertain the appeal against the award as the appeal lay before the Commissioner of the (revenue) Division under R. 118 of Rules. The Society thereupon filed appeal before the Commr. on April 9, 1974 but it filed another appeal on April 15, 1974. Both the appeals were identical and directed against the same award. Under R. 118 an appeal against the award of the arbitrator has to be filed within one month of the date of communication of the award but as the respondent Society had filed appeal beyond one month it made an application under S. 5 of the Limitation Act for condoning the delay. The petitioner Mill contested the application and asserted that S. 5 of the Limitation Act was not applicable, and as such the Commissioner had no jurisdiction to condone the delay. The Commissioner by his order dated Oct. 25, 1975 held that S. 5 of the Limitation Act was applicable and he condoned the delay in filing the appeal. Aggrieved, the petitioner Mill filed this petition challenging the validity of the order of the Commissioner.

3. The Commissioner held that R. 118 is a special law which prescribed limitation of one month for filing appeal against an award, therefore S. 29(2) of the Limitation Act was attracted. Since S. 29(2) was applicable, the provisions of Ss. 4 to 24 of the Limitation Act including S. 5 of the said Act would apply to proceedings in appeal before him. On these findings the Commissioner applying S. 5 of the Limitation Act condoned the delay.

4. There is no express provision either in the U.P Sugarcane (Regulation of Supply and Purchase) Act or the Rules framed thereunder applying the provisions of S. 5 of the Limitation Act to proceedings before the Arbitrator or the Commissioner under R. 118. In the absence of any such provision the question arises as to whether by virtue of S. 29(2) of the Limitation Act S. 5 thereof would be applicable. S. 5 of the Limitation Act applies to courts. The question whether S. 5 would apply to Tribunals or quasijudicial authorities constituted under any special law by virtue of S. 29(2) was considered by a Full Bench of this Court in Surendra Kumar Goel v. State Transport Appellate Tribunal, (Writ Petn. No. 326 of 1976), decided on 29th April, 1979. The Full Bench held that S. 5 does not apply to Tribunals or quasijudicial authorities constituted under a special law, instead it applied only to courts which fall within the hierarchy of courts established for the purpose of dispensing or administration of justice. The Full Bench further held that by virtue of S. 29(2) of the Limitation Act. S. 5 was not applicable to proceedings before the State Transport Appellate Tribunal constituted under the Motor Vehicles Act, 1939. It further held that the State Transport Appellate Tribunal was not a court, instead it was a tribunal under a special low. The law laid down by the Full Bench makes it amply clear that Section 5 of the Limitation Act cannot be applicable to proceedings before the arbitrator or in appeal before the Commissioner under Rules.

5. The question then arises whether the Commissioner is a court. If this question is answered in the affirmative, S. 5 of the Limitation Act would apply to proceedings before him but if the answer is in the negative, S. 5 would not be applicable and the Commissioner will have no jurisdiction to resort to S. 5 of the Limitation Act to condone the delay. R. 118 lays down that any party considering itself aggrieved by the award of the Arbitrator may appeal to the Commissioner within one month of the communication of the award and the order of the Commissioner in appeal shall be final. Commissioner as defined by R. 2(d) means a Commissioner of the revenue division. S. 12 of the U.P Land Revenue Act confers power on the State Government to appoint Commissioner for each division to exercise power and discharge duties conferred and imposed on a Commissioner under that Act and under any other law for the time being in force. The Commissioner so appointed shall exercise authority over all revenue officers in his division. “Revenue Court” as defined by, S. 4(8) means all or any of the authorities, namely, the Board and all its members, Commissioner, Additional Commissioners, Collector, Additional Collector, Assistant Collectors and the Settlement Officers etc. In view of this definition, it was strongly urged that the Commissioner while hearing appeal under R. 118 was acting as Revenue Court. We are not inclined to accept this contention. The definition of “Revenue Court” as contained in sub-sec. (8) of S. 4 is applicable to proceedings under that Act (U.P Land Revenue Act). The Commissioner of a Division is an Executive Officer who is required to perform various functions and discharge several administrative duties. He does not act as Revenue Court while discharging his administrative functions. The opening words of Section 4, “In this Act, unless there be something repugnant in the subject or context” have restricted the definition of “revenue court.”. The legislative intent appears to be that while hearing appeals under the provisions of the U.P Land Revenue Act the Commissioner shall constitute a Revenue Court but there is no provision in the Act to indicate that the Commissioner while discharging his functions under other Acts shall also function as Revenue Court, While hearing appeals under R. 118 the Commissioner does not exercise powers of a revenue court, instead he hears and decides the appeals as a persona designata. A Commissioner while functioning as a revenue court has no authority to entertain or hear appeal against the award of an arbitrator. He has jurisdiction to hear appeal as Commissioner as he is designated as the appellate authority under R. 118.

6. In Hans Kumar Kishan Chand v. Union of India (AIR 1958 SC 947) an appeal against the award of an arbitrator was maintainable before the High Court under the provisions of the Defence of India Rules. The question arose whether the High Court while hearing appeal was exercising the powers of the court or it functioned as a persona designata. The Supreme Court held that an appeal was essentially a continuation of the original-arbitration proceeding and their character cannot suffer a change when they are brought up before the Appellate Tribunal. A proceeding which is at the inception an arbitration proceeding must retain its character as arbitration even if it is taken up in appeal as provided by the statute. If appeal is provided to a court, its order does not become judgment, decree or order amenable to challenge before the higher authority as the court is designated as a persona designata for deciding appeals against the award of the arbitrator. On these principles the Commissioner was a persona designata and he cannot be held to be a court.

7. Learned counsel then urged that even if S. 5 of the Limitation Act was not applicable, the principles underlying the said section would apply and the appellate authority was justified to condone the delay as the respondent Society had under a mistaken belief filed appeal within time before the Cane Commissioner. This court should not therefore interfere with the Commissioner's order. Since S. 5 does not apply, the Commissioner has no jurisdiction to condone the delay in filing the appeal. If S. 5 does not apply the principles underlying the said section cannot be made applicable by any analogy or on principles of justice and equity. A similar contention was repelled by the Supreme Court in Commr. of Sales-tax v. Parson Tools & Plants (1975) 4 SCC 22 : AIR 1975 SC 1039. The Supreme Court held that the Limitation Act or the principles underlying its provisions cannot be imported to Special Act by analogy. If the legislature does not confer any power on an authority for condoning the delay, the court cannot by some rule of interpretation override the legislative intent and introduce the power to condone the delay under the guise of interpretation or on the principles of justice and equity. On the expiry of the period of limitation for filing appeal against the award of the arbitrator a valuable right accrued in favour of the petitioner. The Commissioner had no jurisdiction to condone the delay and reopen the dispute before him.

8. In view of the above discussion, we are of the opinion that an appeal under R. 118 must be filed by the aggrieved party within one month of the communication of the award.

9. If an appeal is filed beyond the period prescribed under the rules the Commissioner has no jurisdiction to entertain the appeal or condone the delay by applying the provisions of S. 5 of the Limitation Act. Since the Commissioner does not function as a Court, he has no jurisdiction to condone the delay. The Commissioner exceeded his jurisdiction in condoning the delay and entertaining the appeal filed by the respondent Society.

10. In the result we allow the petition and quash the Commissioner's order dated October 25, 1975. Parties shall bear their own costs.

11. Petition allowed.