# M/s Saket Bricks Traders v. Addl. Commissioner (Legal), Trade Tax and another

- **Citation:** (2001) 1 ILRA 385
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-saket-bricks-traders-v-addl-commissioner-legal-trade-tax-and-another-39748
- **Pages:** 3

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
385
rent. This advantage was available to her
under the compromise arrived at between
the parties. The land lady therefore cannot
play loose and fast or in the common
parlance she cannot be permitted to blow
hot and cold. She has to abide by the
conditions contained in the compromise
and the order of release passed in the
subsequent P.A. Case no. 30 of 1992,
which has become final, should not be
implemented prior to 31/12/2004. On
equitable consideration she is bound to
permit the petitioner tenant to continue as
a tenant in the shop in dispute till
31/12/2004. She is accepting the rent at
enhanced rates on the condition that the
tenant shall continue in possession atleast
up to 31/12/2004.

13. In the conspectus of the above
discussion, the order of release passed on
10/05/1994 in P.A. Case no. 30 of 1992
and
as
confirmed
by
order
dated
08/12/1995 in Rent Appeal no. 23 of
1994, cannot be interfered with by
invoking the writ jurisdiction under
Article 226 of constitution of India. The
writ petition is accordingly dismissed.

14. However, the implementation of
the order of release dated 10/05/1994 is
deferred till 31/12/2004 in view of the
compromise arrived at between the parties
in P.A. Case no. 74 of 1983 pursuant to
which the respondent no. 3 land lady is
accepting enhanced rent. In case the
petitioner does not vacate the premises on
or before 31/12/2004, the release order
shall become enforceable according to
law.

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By the Court

1. The petitioner seeks a writ of
certiorari quashing the order dated 20th
April, 1996 whereby the application of
the petitioner for compounding has been
rejected on the ground that the application
was filed beyond time.

2. The petitioner is partnership firm
and is carrying on the business of
manufacturing and sales of bricks. The
petitioner for the year 1994-95 moved an
application
on
5th
may,
1995
for
compounding
under
compounding
1All] M/s Saket Bricks Traders. V. Addl. Commissioner (Legal), Trade Tax and another
386
scheme introduced by the State
Government in exercise of power under
Section 7-D of the U.P. Trade Tax Act,
1943 (hereinafter referred to as the Act)
for lump sum payment of tax during the
relevant period. This application has been
rejected by respondent no. 1 by the
impugned order dated 20th April, 1996 on
the ground that the application was filed
beyond
the
period
prescribed
for
submitting
the
application
for
compounding.

3. It is not disputed that the
petitioner had filed an application for
compounding
under
the
scheme
introduced by the State Government in
exercise of power under Section 7-D of
the Act, which was beyond time by 5
days. The contention of Shri Rajesh
Kumar, learned counsel for the petitioner,
is that the petitioner had also filed an
application to condone the delay and
respondent no. 1 without considering the
facts as stated in the application rejected
the application filed by the petitioner.

4. The sole question to be decided in
this petition is whether Section 5 of the
Limitation Act is applicable to an
application filed for compounding under
Section 7-D of the Act. Section 5 of the
Limitation Act, 1963 in applicable to the
courts. This legal position is settled in
Nityanand M. Joshi and another Vs the
Life Insurance Corporation of India and
others, A.I.R. 1970 S.C. 209. The Apex
Court held that Section 4 and 5 of the
Limitation Act deal with applications to
the courts and the Labour Court is not a
Court and, therefore, an application under
Section 33 C (2) cannot be held to be
barred under Article 137 is so far as the
claim was for period beyond three years.
In the Commissioner of Sales Tax, U.P.,
Lucknow Vs M/s Parson Tools and
Plants, Kanpur 1975 U.P.T.C. 297, the
Supreme Court held that the provisions of
Section 14 (23) of the Limitation Act is
not applicable to the proceedings before
the authorities under the Sales Tax Act
irrespective of whether they exercise,
original,
appellate
or
revisional
jurisdiction under the Sales Tax Act.

5. The learned counsel for the
petitioner then urged that the provisions
of Sections 4 to 24 of the Limitation Act
will be applicable in view of the
provisions of Section 29 (2) of the
Limitation Act which provides that 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.
This
provision
will
be
applicable
only
when
the
authority
functions as a court. In Mukri Gopalan
Vs. Cheppilat Puthanpurayil Abooacker
on the facts it was found that the appellate
authority constituted under Section 18 of
the Kerala Rent Act, 1965 functions as a
Court and, therefore, the provisions of
Section 5 of the Limitation Act was made
applicable in respect of appeals filed by
the
appellant
keeping
in
view
the
provisions of Section 29 (2) of the
Limitation Act.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
387
That apart if statute makes Section 5
or any other provisions of the Limitation
Act
applicable
in
respect
of
any
application, appeal or revision but in
respect of other applications those section
of the Limitation Act have not been
excluded, it will be taken that they have
been excluded by the legislature. In the
Commissioner
of
Sales
Tax,
U.P.,
Lucknow Vs M/s Parson Tools and
Plants, Kanpur, 1975 U.P.T.C. 297, the
court
considering
the
provisions
of
Section 10 of the U.P. Sales Tax Act held
that the function of the legislature to
exclude the unrestricted application of the
principles of Section 5 and 14 of the
Limitation Act is manifestly clear. The
Court observed as follows:

"Be that as it may, from the scheme
and language of Section 10, the intention
of
the
Legislature
to
exclude
the
unrestricted application of the principles
of Sections 5 and 14 of the Limitation Act
is manifestly clear. These provisions of
the Limitation Act which the legislature
did not, after due application of mind,
incorporate in the Sales Tax Act, Cannot
be imported into it by analogy..."

6. Lastly the compounding scheme
was sponsored by the State Government
under Section 7-D of the Act. The
Scheme has given a cut off date. If any
persons wants to take advantage of the
said Scheme he was to submit an
application
within
that
period.
The
intention of the legislature was obvious as
to fixing the time limit. If the period of
limitation is extended by applying the
principles laid down under Section 5 of
the Limitation Act, the Court could
extend the period of the Scheme which
was
not
envisaged
by
the
State
Government.
In view of the above, the impugned
order does not require any interference.

The writ petition is accordingly
dismissed. However the parties shall bear
their own costs.

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By the Court

1. Heard Sri P.N. Tripathi, learned
counsel for the petitioner and the learned
Government Counsel