# Shanu v. State of U.P. 2009 (66) ACC

- **Citation:** (2009) 3 ILRA 739
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-03
- **Case number:** Income Tax Appeal No. 78 of 2002
- **Bench:** C.K. Prasad, C. J. R.K. Agrawal, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shanu-v-state-of-u-p-2009-66-acc-41437
- **Pages:** 11

## Headnote

Income Tax Act-1961-Section 260 A(2)-
Tax Appeal-Beyond 120 days-question as
to whether the provisions of limitation
contained in section 4 to 24 as provided
under Section 29(2) of limitation Act
1963 are applicable of considering the
principle
of
natural
justice
can
be
entertained and decided on merit-held-it
has to be presented in accordance with
procedure
and
within
the
time
prescribed by statute-principle of natural
justice not alienated-appeal beyond that
liable to be dismissed as barred by
limitation.
740 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Held: Para-29

We are of the opinion that appeal has to
be presented according to the procedure
prescribed. The remedy of appeal is a
statutory right and hence it has to be
presented
in
accordance
with
the
procedure, the manner and within the
time prescribed by the Statute, and the
principles of natural justice are not
remotely attracted so far as the question
of limitation is concerned.
Case Law discussed:
AIR 1995 SC 2272, AIR 1966 All. 161(2007),
289 ITR 382 (Bom), (1974) 2 SCC 133, AIR
1975 SC 1039, (2009) 5 SCC 791, AIR 1979
Delhi 26.

## Text

3 All] Commissioner of Income Tax-I, Kanpur V. Shri Mohd. Farooq

739
lady without any lawful excuse, the
applicant does not deserve bail.

13. I entirely agree with the
contention of learned AGA that parity
cannot be the sole ground for bail.
Reliance can be placed on Shahnawaz @
Shanu Vs. State of U.P. 2009 (66) ACC
189.

14. In my considered opinion, on the
basis of long incarceration in jail also, the
applicant cannot be released on bail. In
this context, reference may be made to the
case of Pramod Kumar Saxena vs. Union
of India and others 2008(68) ACC 115,
in which the Hon'ble Apex Court has held
that mere long period of incarceration in
jail would not be per-se illegal. If the
accused has committed offence, he has to
remain behind bars. Such detention in jail
even as an under trial prisoner would not
be violative of Article 21 of the
Constitution.

15.

Consequently,
the
bail
application is hereby rejected.

16. The trial court concerned is
directed to conclude the trial of the
applicant and other accused within a
period of six months making sincere
efforts and applying the provisions of
section 309 Cr.P.C.

17. S.S.P. Ghaziabad is also directed
to depute special messenger to procure the
attendance
of
the
witnesses
after
obtaining their summons from the court
concerned and it must be ensured that all
the witnesses are produced in the session
trial arising out of aforesaid case without
causing any delay.

18. The office is directed to send a
copy of this order within a week to the
trial
court
concerned
and
S.S.P.
Ghaziabad for necessary action.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2009

BEFORE
THE HON'BLE C.K. PRASAD,C. J.
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE PRAKASH KRISHNA, J.

Income Tax Appeal No. 78 of 2002

Commissioner of Income Tax-I, Kanpur

 ...Appellant
Versus
Shri Mohd. Farooq
 ...Respondent

Counsel for the Appellant:
Sri Shambhu Chopra
Sri Ashok Kumar
Sri Ashok Trivedi
Sri Ashok Trivedi
Sri Krishna Agrawal
Sri R.P. Kapoor
Sri R.P. Agrawal
Sri V.K. Dwivedi

Counsel for the Respondent:
Sri V.B. Upadhyay
Sri Hanuman Upadhyay

Income Tax Act-1961-Section 260 A(2)-
Tax Appeal-Beyond 120 days-question as
to whether the provisions of limitation
contained in section 4 to 24 as provided
under Section 29(2) of limitation Act
1963 are applicable of considering the
principle
of
natural
justice
can
be
entertained and decided on merit-held-it
has to be presented in accordance with
procedure
and
within
the
time
prescribed by statute-principle of natural
justice not alienated-appeal beyond that
liable to be dismissed as barred by
limitation.
740 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Held: Para-29

We are of the opinion that appeal has to
be presented according to the procedure
prescribed. The remedy of appeal is a
statutory right and hence it has to be
presented
in
accordance
with
the
procedure, the manner and within the
time prescribed by the Statute, and the
principles of natural justice are not
remotely attracted so far as the question
of limitation is concerned.
Case Law discussed:
AIR 1995 SC 2272, AIR 1966 All. 161(2007),
289 ITR 382 (Bom), (1974) 2 SCC 133, AIR
1975 SC 1039, (2009) 5 SCC 791, AIR 1979
Delhi 26.

(Delivered by Hon'ble C.K. Prasad, C.J.)

1. As identical question of law is
involved in all these appeals, they have
been heard together and are being
disposed off by this common judgment.

2. All these appeals have been
preferred under Section 260A (2) of the
Income Tax Act, 1961 (hereinafter
referred to as the ''Act 1961') by the
Revenue as well as by the Assessee. It
provides for filing of an appeal in the
form of a memorandum of appeal within
120 days from the date on which the order
appealed against is received by the
Assessee or the Chief Commissioner or
the Commissioner. It is an admitted
position that all these appeals have been
preferred beyond the period of limitation
as provided under the aforesaid Section
and the appellants have filed applications
for extension of prescribed period of
limitation and for admission of appeals
after condoning the delay. When said
applications for condonation of delay
were placed for consideration before a
Division Bench of this Court, the Division
Bench by order dated 20.08.2007 referred
the following question for determination
by a larger Bench:-

"As to whether the period of
limitation prescribed for filing an appeal
under Section 260-A (2) of the Income
Tax Act, 1961 is subject to the provisions
contained in Sections 4 to 24 of the
Limitation Act, 1963 as provided under
Section 29 (2) of the Limitation Act,
1963?"

3. Hon'ble the Chief Justice on
reference so made, directed the matter to
be heard by three Judges' Bench and that
is how, these appeals have come up
before us for determination of the
aforesaid question.

4. The question so formulated
necessitates examination of the provisions
of the Limitation Act, 1963 (hereinafter
referred to as the ''Act 1963') as also the
Act 1961. Section 29 of the Act 1963,
which is relevant for the purpose, reads as
follows:-

"29. Savings.- (1) Nothing in this Act shall
affect Section 25 of the Indian Contract,
1872 (9 of 1872).

(2) 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
3 All] Commissioner of Income Tax-I, Kanpur V. Shri Mohd. Farooq

741
expressly excluded by such special or
local law.

(3) Save as otherwise provided in any law
for the time being in force with respect to
marriage and divorce, nothing in this Act
shall apply to any suit or other
proceeding under any such law.

(4) Sections 25 and 26 and the definition
of "easement" in Section 2 shall not apply
to cases arising in the territories to which
the Indian Easements Act, 1882 (5 of
1882), may for the time being extend."

5. From a plain reading of Section
29 (2) of the Act 1963, it is evident that
where in any special or local law, a period
of limitation different from the period
prescribed by its Schedule is provided, the
provisions of Section 3 of the Act 1963
shall apply as if such period was the
period prescribed by the Schedule to the
Act 1963. It also provides that for the
purpose of determining any period of
limitation
prescribed,
the
provisions
contained in Sections 4 to 24 of the Act
1963 shall apply only insofar as and to the
extent they are not expressly excluded by
such special or local law.

6. In view of aforesaid, the question
which, at the first instance, falls for
consideration is as to whether an appeal
preferred under Section 260A (2) of the
Act 1961 comes within the ambit of
Section 29 (2) of the Act 1963 so as to
include the application of Sections 4 to 24
of the Act 1963. To come within the
ambit of Section 29 (2) of the Act 1963,
three main ingredients are required to be
satisfied, namely:-

(1) The special or local law must
provide for a period of limitation for any
suit or appeal.

(2) The said period of limitation
must be different from the period
prescribed by the Schedule to the Act
1963.

(3) The application of Sections 3
and 4 to 24 of the Act 1963 has not been
expressly excluded by the special law.

7. It is common ground that the Act
1961 has provided for a period of
limitation for filing an appeal and the said
period of limitation is different from the
period prescribed by the Schedule to the
Act 1963. It is relevant here to state that
Section 260A of the Act 1961 prescribes
limitation of 120 days whereas Article
116 of the Schedule appended to the Act
1963 provides limitation of 90 days for
filing appeal to the High Court.

8.

In
view
of
the
above,
unhesitatingly, the first two requirements
are satisfied.

9. It is contended on behalf of the
appellants that once conditions nos. 1 and
2, referred to above, have been satisfied,
Section 29 (2) of the Act 1963 would
apply. Reliance has been placed on a
decision of the Supreme Court in the case
of
Mukri
Gopalan
Vs.
Cheppilat
Puthanpurayil Aboobacker, AIR 1995 SC
2272, in which it has been held as
follows:-

"22. As a result of the aforesaid
discussion it must be held that appellate
authority constituted under Section 18 of
the Kerala Rent Act, 1965 functions as
court and the period of limitation
prescribed therein under Section 18
742 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

governing appeals by aggrieved parties
will be computed keeping in view the
provisions of Sections 4 to 24 of the
Limitation Act, 1963 such proceedings
will attract Section 29 (2) of the
Limitation Act and consequently Section 5
of the Limitation Act would also be
applicable to such proceedings. Appellate
Authority will have ample jurisdiction to
consider the question whether delay in
filing such appeals could be condoned on
sufficient cause being made out by the
concerned applicant for the delay in filing
such appeals. ... "

10. We do not find any substance in
the aforesaid submission of the counsel
for the appellants and we are of the
opinion that the special law providing for
a period of limitation and that being
different from the period prescribed by
the Schedule to the Act 1963 itself, would
not attract the provisions of Section 29 (2)
of the Act 1963. The judgment of the
Supreme Court in the case of Mukri
Gopalan (supra), relied on by the
appellants, in no way, suggests that if
there is period of limitation under any
special or local law and that prescription
of period of limitation under such special
law is different from the period prescribed
by the Schedule to the Act 1963, Section
29 (2) of the Act 1963 on its own force
will get attracted. It has further been held
in the said case that one has to see that
there is no express exclusion taking out
the applicability of Section 5 of the Act
1963. In fact, this would be evident from
the following passage of paragraph 11 of
the judgment:-

"11. It is also obvious that once the
aforesaid two conditions are satisfied S.
29 (2) on its own force will get attracted
to appeals filed before appellate authority
under S. 18 of the Rent Act. When Section
29 (2) applies to appeals u/S. 18 of the
Rent Act, for computing the period of
limitation prescribed for appeals under
that Section, all the provisions of Ss. 4 to
24 of the Limitation Act would apply.
Section 5 being one of them would
therefore get attracted. It is also obvious
that there is no express exclusion
anywhere in the Rent Act taking out the
applicability of S. 5 of the Limitation Act
to appeals filed before appellate authority
under S. 18 of the Act. Consequently, all
the legal requirements for applicability of
S. 5 of the Limitation Act to such appeals
in the light of S. 29 (2) of Limitation Act
can be said to have been satisfied. ..."
(Underlining ours)

11. Submission of the counsel for
the appellants is that neither Section 260A
of the Act 1961 nor any other provision
thereof
expressly
excludes
the
applicability of Sections 4 to 24 of the Act
1963 and, therefore, Section 29 of the Act
1963 will apply and once it is held so,
Section 5 of the Act 1963 would be
available for extending the time for filing
appeals and condoning the delay in filing
appeals under Section 260A of the Act
1961. It is further contended that when the
legislature
has used the expression
"expressly excluded", one has to bank
upon the provisions of the Act 1961 to
come to that conclusion and the said
conclusion cannot be arrived at by process
of a detailed reasoning. Reference in this
connection has been made to a decision of
this Court in the case of Harbir Singh Vs.
Ali Hasan & Ors., AIR 1966 All. 161, and
our attention has been drawn to the
following paragraph of the judgment:-

(9) The expression "expressly excluded"
is clear enough. It signifies exclusion by
3 All] Commissioner of Income Tax-I, Kanpur V. Shri Mohd. Farooq

743
words. It will not mean exclusion by a
process of construction or reasoning. In
Vidyacharan's case, AIR 1964 SC 1099,
Subba Rao, J. observed in paragraph 27
that S. 29 speaks of express exclusion and
that
though
S.
116-A
of
the
Representation of the People Act 1951
provides a period of limitation for an
appeal and also the circumstance under
which the delay can be excused, yet it
does not amount to an express exclusion
within the meaning of S. 29 of the
Limitation Act."

12. Reliance has also been placed on
a Full Bench decision of the Bombay
High Court in the case of Commissioner
of Income-Tax Vs. Velingkar Brothers,
(2007) 289 ITR 382 (Bom). In the said
case, on review of a large number of
authorities, the Bombay High Court has
finally concluded as follows:-

"25. We shall finally conclude thus:
Section 5 of the Limitation Act shall apply
in case of the appeals filed under Section
260A of the Income-tax Act, 1961."

13. While coming to the aforesaid
conclusion, the Full Bench has observed
as follows:-

"21. Thus, there is an overwhelming
line of cases holding Section 5 of the
Limitation Act applicable to the matters in
appeal and reference applications to the
High Court under the Indian Income-tax
Act, the Customs Act and the Bombay
Sales Tax Act. Our conclusion in this
regard is in line with these cases."

14. Counsel for the respondents,
excepting those in which Revenue is the
respondent, however, contend that the
expression "expressly excluded" does not
mean that the provision providing for
appeal itself should say so and that can be
inferred from the scheme of the Act 1961
itself. Accordingly, it has been contended
that the scheme of the Act 1961 clearly
excludes application of Section 5 of the
Act 1963 and, therefore, an appeal
preferred under Section 260A of the Act
1961 cannot be admitted by extending the
period of limitation.

15. In our opinion, for express
exclusion of Sections 4 to 24 of the Act
1963, the special law need not provide for
its exclusion in the provision providing
for appeal itself and the express exclusion
can be inferred from the scheme of the
Act. We are further of the opinion that in
a case where the special law does not
exclude the provisions of Sections 4 to 24
of the Act 1963 by an express provision,
it would, nonetheless, be open to the
Court to examine whether and to what
extent the nature of those provisions or
the nature of the subject matter and the
scheme of the special law excludes their
operation.
One
can
come
to
the
conclusion that when a special law does
not provide for application of Section 5 of
the Act 1963, it is expressly excluded. A
reference in this connection can be made
to a decision of the Supreme Court in the
case of Hukumdev Narain Yadav Vs.
Lalit Narain Mishra, (1974) 2 SCC 133,
in which it has been held as follows:-

"... Even assuming that where a
period of limitation has not been fixed for
election petitions in the Schedule to the
Limitation Act which is different from that
fixed under Section 81 of the Act, Section
29 (2) would be attracted, and what we
have to determine is whether
the
provisions of this Section are expressly
excluded in the case of an election
744 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

petition. It is contended before us that the
words "expressly excluded" would mean
that there must be an express reference
made in the special or local law to the
specific provisions of the Limitation Act of
which the operation is to be excluded. As
usual the meaning given in the Dictionary
has been relied upon, but what we have to
see is whether the scheme of the special
law, that is in this case the Act, and the
nature of the remedy provided therein are
such that the Legislature intended it to be
a complete code by itself which alone
should
govern
the
several
matters
provided by it. If on an examination of the
relevant provisions it is clear that the
provisions of the Limitation Act are
necessarily excluded, then the benefits
conferred therein cannot be called in aid
to supplement the provisions of the Act. In
our view, even in a case where the special
law does not exclude the provisions of
Sections 4 to 24 of the Limitation Act by
an express reference, it would nonetheless
be open to the Court to examine whether
and to what extent the nature of those
provisions or the nature of the subjectmatter and scheme of the special law
exclude their operation. The provisions of
Section 3 of the Limitation Act that a suit
instituted,
appeal
preferred
and
application made after the prescribed
period shall be dismissed are provided for
in Section 86 of the Act which gives a
peremptory command that the High Court
shall dismiss an election petition which
does not comply with the provisions of
Sections 81, 82 or 117. It will be seen that
Section 81 is not the only Section
mentioned in Section 86, and if the
Limitation Act were to apply to an
election petitioner under Section 81 it
should equally apply to Sections 82 and
117 because under Section 86 the High
Court cannot say that by an application of
Section 5 of the Limitation Act, Section 81
is complied with while no such benefit is
available in dismissing an application for
non-compliance with the provisions of
Sections 82 and 117 of the Act, or
alternatively if the provisions of the
Limitation Act do not apply to Section 82
and Section 117 of the Act, it cannot be
said that they apply to Section 81. Again
Section 6 of the Limitation Act which
provides for the extension of the period of
limitation till after the disability in the
case of a person who is either a minor or
insane or an idiot is inapplicable to an
election petition. Similarly, Sections 7 to
24 are in terms inapplicable to the
proceedings under the Act, particularly in
respect of the filing of election petitions
and their trial."

16. Yet another decision of the
Supreme Court in the case of The
Commissioner
of
Sales
Tax,
Uttar
Pradesh, Lucknow Vs. M/s. Parson Tools
and Plants, Kanpur, AIR 1975 SC 1039,
lends support to aforesaid view, which
would be evident from paragraphs 12 and
13 of the judgment, which read as
follows:-

"12. If the legislature willfully omits
to incorporate something of an analogous
law in a subsequent statute, or even if
there is a casus omissus in a statute, the
language of which is otherwise plain and
unambiguous, the Court is not competent
to supply the omission by engrafting on it
or introducing in it, under the guise of
interpretation by analogy or implication,
something what it thinks to be a general
principle of justice and equity. " To do
so"--(at p. 65 in Prem Nath L. Ganesh v.
Prem Nath L. Ram Nath, AIR 1963 Punj.
62. per Tek Chand, J.) "would be
entrenching
upon
the
preserves
of
3 All] Commissioner of Income Tax-I, Kanpur V. Shri Mohd. Farooq

745
Legislature", the primary function of a
court of law being jus dicere and not jus
dare.
13. In the light of what has been said
above, we are of the opinion that the High
Court was in error in importing whole
hog the principle of Section 14(2) of the
Limitation Act into Section 10 (3-B) of the
Sales-tax Act."

17. The Supreme Court had the
occasion to consider this question in the
case
of
L.S.
Synthetics
Ltd.
Vs.
Fairgrowth Financial Services Ltd. &
Anr., (2004) 11 SCC 456, in which it has
been held as follows:-

"38. A Special Court having regard
to its nature and functions may be a court
within the meaning of Section 3 of the
Indian Evidence Act, 1872 or Section 3 of
the Limitation Act, 1963 but having
regard to its scope and object and in
particular the fact that it is a complete
code in itself, in our opinion, the period of
limitation provided in the Schedule
appended to the Limitation Act, 1963, will
have no application. For the applicability
of Section 29 (2) of the Limitation Act, the
following requirements must be satisfied
by the court invoking the said provision:

(1) There must be a provision for period
of limitation under any special or local
law in connection with any suit, appeal or
application.

(2) Such prescription of the period of
limitation under such special or local law
should be different from the period of
limitation prescribed by the Schedule to
the Limitation Act, 1963."

18. In view of the authoritative
pronouncement of the Supreme Court in
the case of Commissioner of Customs &
Central Excise Vs. M/s. Hongo India (P)
Ltd. & Anr., (2009) 5 SCC 791, this
question
does
not
need
further
elaboration.
Paragraph
20
of
the
judgment, which is relevant in this regard,
reads as follows:-

"20. Though, an argument was raised
based on Section 29 of the Limitation Act,
even assuming that Section 29 (2) would
be attracted what we have to determine is
whether the provisions of this section are
expressly excluded in the case of
reference to High Court. It was contended
before us that the words "expressly
excluded" would mean that there must be
an express reference made in the special
or local law to the specific provisions of
the Limitation Act of which the operation
is to be excluded. In this regard, we have
to see the scheme of the special law here
in this case is Central Excise Act. The
nature of the remedy provided therein are
such that the legislature intended it to be a
complete Code by itself which alone
should
govern
the
several
matters
provided by it. If, on an examination of
the relevant provisions, it is clear that the
provisions of the Limitation Act are
necessarily excluded, then the benefits
conferred therein cannot be called in aid
to supplement the provisions of the Act.
In our considered view, that even in a
case where the special law does not
exclude the provisions of Sections 4 to 24
of the Limitation Act by an express
reference, it would nonetheless be open to
the court to examine whether and to what
extent, the nature of those provisions or
the nature of the subject-matter and
scheme of the special law exclude their
operation.
In
other
words,
the
applicability of the provisions of the
Limitation Act, therefore, to be judged not
746 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

from the terms of the Limitation Act but
by the provisions of the Central Excise
Act relating to filing of reference
application to the High Court. The
scheme of the Central Excise Act, 1944
support the conclusion that the time limit
prescribed under Section 35H (1) to make
a reference to High Court is absolute and
unextendable by court under Section 5 of
the Limitation Act. It is well settled law
that it is the duty of the court to respect
the legislative intent and by giving liberal
interpretation,
limitation
cannot
be
extended by invoking the provisions of
Section 5 of the Act."

19. Bearing in mind the principle
aforesaid, we proceed to consider the
scheme of the Act. It hardly needs any
discussion to hold that the Act 1961 is a
complete Code in itself. Chapter XX of
the Act 1961 deals with appeals and
revision. Section 249 of the Act 1961
provides for appeal to the Commissioner
and the limitation thereto, and sub-section
(3) thereof specifically provides that the
Commissioner (Appeals) may admit an
appeal after the expiration of the period of
limitation if he is satisfied that the
appellant had sufficient cause for not
presenting the appeal within time. Section
253 of the Act 1961 provides for appeal to
the Appellate Tribunal and the limitation
for filing the appeal, but again sub-section
(5)
thereof
confers
power
on
the
Appellate Tribunal to admit an appeal
after expiry of the period of limitation.
The
power
of
the
Commissioner
(Appeals) and the Appellate Tribunal to
condone the delay is not hedged and they
can condone the delay of any period.
However, Section 256 of the Act 1961,
before its omission by the National Tax
Tribunal Act, 2005, though provided for
the Appellate Tribunal to make reference
to the High Court and the limitation for
filing such an application for reference
was 120 days, but the proviso thereof had
given power to entertain an application
within a further period not exceeding 30
days. The proviso to sub-section (3) of
Section 264 of the Act 1961 providing for
filing
revision
also
contemplates
admission of an application beyond the
period of limitation on showing sufficient
cause.

20. It is relevant here to state that
proviso to sub-section (1) of Section
269G of the Act, 1961 provides for
extension of period of limitation for filing
an appeal before the Appellate Tribunal
against an order of the competent
authority under Section 269F of the Act,
1961. Not only this, in relation to an
appeal to the High Court against the order
of the Appellate Tribunal under Section
269G of the Act, 1961, jurisdiction has
been conferred to the High Court to admit
the appeal after the expiry of the period of
limitation on an application made before
the
expiry
of
the
period.
In
the
background
aforesaid,
when
one
considers the provision of Section 260A
of the Act 1961 providing for appeal to
the High Court, it is evident that no such
power has been given to the Court.
Absence of any provision in Section 260A
of the Act, 1961 conferring jurisdiction to
condone the delay in filing the appeal and
in view of the scheme of the Act, referred
to above, in our opinion, provisions of
Sections 4 to 24 of the Act, 1963 would
not be applicable in the case of an appeal
preferred under Section 260A of the Act,
1961.

21. Now referring to the decision of
this Court in the case of Harbir Singh
(supra), same in no way supports the plea
3 All] Commissioner of Income Tax-I, Kanpur V. Shri Mohd. Farooq

747
of the appellants. Various provisions of
the Act 1961, which we have referred to
above, signify exclusion of the Act 1963.

22. True it is that the Full Bench of
the Bombay High Court in the case of
Velingkar Brothers (supra) has held that
Section 5 of the Act 24 of 1963 shall
apply in case of appeals filed under
Section 260A of the Act 1961, but in view
of the decision of the Supreme Court in
the case of Hongo India (Pvt.) Ltd.
(supra), it is difficult to follow its
reasoning. The decision of the Bombay
High Court is based on its earlier
decisions in the cases relating to Customs
Act and other Acts. However, the
Supreme Court in the case of Hongo India
(Pvt.)
Ltd.
(supra)
considered
the
provisions of the Central Excise Act visà-vis Section 29 (2) of the Act 1963 and
in face of enunciation of law in this case,
it is difficult to follow the reasoning and
conclusion of the Bombay High Court in
the aforesaid case relied on by the
appellants.

23. Accordingly, answer to the
question formulated is in the negative and
it is held that the period of limitation
prescribed for filing an appeal under
Section 260A (2) of the Act, 1961 is not
subject to the provisions contained in
Sections 4 to 24 of the Act, 1963, as
provided under Section 29 (2) of the Act,
1963.

24. Aforesaid answer, in our
opinion, would have concluded the
reference, but in deference to the plea
taken by the appellants that Order XLI
Rule 3-A of the Code of Civil Procedure
(hereinafter referred to as the ''Code'),
being applicable to an appeal under
Section 260A of the Act, 1961, the delay
in filing the appeal can be condoned
under the aforesaid provision. It has been
pointed out that sub-section (7) of Section
260A of the Act, 1961 provides for
application of the provisions of the Code
in the case of an appeal preferred under
Section 260A of the Act, 1961. It has
further been pointed out that Order XLI
Rule 3-A of the Code, which has been
inserted by the Code of Civil Procedure
Amendment Act, 1976 (Act No.104 of
1976), provides for condonation of delay.
Accordingly, it has been submitted that
even if the provisions of the Act, 1963
may not be fit to be invoked, but delay
can be condoned by resorting to the
power under Order XLI Rule 3-A of the
Code. Reliance has been placed on a
Single Judge decision of the Delhi High
Court in the case of Miss. Nirmala
Chaudhary Vs. Bisheshar Lal, AIR 1979
Delhi 26, in which it has been held as
follows:-

"34. ...The newly added provision of
R. 3A of O. 41 in the Civil P.C. gives an
additional right to a litigant to claim
condonation at the time of presenting the
appeal...."

25. We do not have the slightest
hesitation in rejecting this submission.
Order XLI Rule 3-A of the Code of Civil
Procedure reads as follows:

"3-A. Application for condonation of
delay.--(1) When an appeal is presented
after the expiry of the period of limitation
specified
therefor,
it
shall
be
accompanied by an application supported
by affidavit setting forth the facts on
which the appellant relies to satisfy the
Court that he had sufficient cause for not
preferring the appeal within such period.
748 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

(2) If the Court sees no reason to reject
the application without the issue of a
notice to the respondent, notice thereof
shall be issued to the respondent and the
matter shall be finally decided by the
Court before it proceeds to deal with the
appeal under Rule 11 or Rule 13, as the
case may be.
(3) Where an application has been made
under sub-rule (1), the Court shall not
make an order for the stay of execution of
the decree against which the appeal is
proposed to be filed so long as the Court
does not, after hearing under Rule 11,
decide to hear the appeal."

26. Sub-rule (1) of Rule 3-A of
Order XLI of the Code provides for
procedure for presenting an appeal after
the expiry of period of limitation and it
contemplates filing of an application
supported by an affidavit setting forth the
facts to satisfy the Court about the
sufficient cause for not preferring the
appeal within time. Sub-rule (2) thereof
provides for notice to the respondent in
case such an application is not rejected at
the threshold and sub-rule (3) mandates
that an order for stay of execution of a
decree against which appeal is proposed
to be filed shall not be granted so long the
decision is not taken to hear the appeal.
Therefore, in our opinion, Order XLI Rule
3-A of the Code is not an independent
provision conferring jurisdiction on the
Appellate Court to condone the delay, but
provides for the procedure to be followed
for filing and considering the application
for condonation of delay.

27. In our opinion, in view of the
language of Order XLI Rule 3-A of
C.P.C., it is difficult to hold that it gives
any additional right to claim condonation
under this provision. A Division Bench of
the Madras High Court had the occasion
to consider this question in the case of
Managing Director, Thanthal Periyar
Transport Corpn. Villupuram Vs. K.C.
Karthiyayini, AIR 1995 Mad. 102,
wherein it has been held as follows:-

"7. Counsel for one of the petitioners
also contends that Order 41, Rule 3-A (1)
gives a further right to claim condonation
of the delay, in addition to such right
under Section 5 of the Limitation Act and
that O. 41, Rule 3-A will have application
only if the said Section 5 is invoked.
According to him these petitions to
condone delay are filed under Section 173
of the Motor Vehicles Act and not under
Section 5 of the Limitation Act. In this
connection,
he
relied
on
Nirmala
Chaudhary Vs. Bisheshar Lal (AIR 1979
Delhi 26) and State of Assam V. Gobinda
Chandra Paul (AIR 1991 Gauhati 104).
The observation in AIR 1979 Delhi 26 is
no doubt as follows (at p. 31):-

"The newly added provision of R.3
of O.41 in the Civil P.C. gives an
additional right to a litigant to claim
condonation at the time of presenting the
appeal."

In State of Assam V. Gobinda Chandra
Paul (AIR 1991 Gauhati 104) also similar
view appears to have been expressed in
the following words (at p.110):-

"Besides,
this
rule
is
not
in
derogation of S.5 of the Limitation Act, in
fact, it is in addition to that".

But, we are unable to subscribe to
this view, since O.41, R.3-A, C.P.C. has
only been inserted by the Amending Act,
1976 in order to prescribe the procedure
for securing the final determination of the
3 All] Jagdev V. Commissioner, Gorakhpur Division and others

749
question as to limitation even at the stage
of admission of the appeal. The rule does
not prescribe the period of limitation for
an appeal. The period of limitation is
provided only under Art. 116 of the
Limitation Act, 1963 in respect of appeals
and it cannot be said that O.41, Rule 3-A
gives any additional right to litigants to
claim
condonation.
Moreover,
condonation of delay is not a matter of
right. The litigant who comes to court
after the prescribed period of limitation is
bound to satisfy the Court that he has
sufficient cause for the delay."

28. We respectfully agree with the
aforesaid observation.

To put the record straight, it is relevant
here to state that it has also been
contended on behalf of the appellants that
principles of natural justice demand that
in case of the appellants showing
sufficient cause, the appeal deserves to be
heard, though presented beyond the
period of limitation.

29. We are of the opinion that
appeal has to be presented according to
the procedure prescribed. The remedy of
appeal is a statutory right and hence it has
to be presented in accordance with the
procedure, the manner and within the time
prescribed by the Statute, and the
principles of natural justice are not
remotely attracted so far as the question
of limitation is concerned.

30. Having held that the delay in
filing the appeals cannot be condoned, we
have no option than to dismiss all the
appeals as barred by limitation and they
are dismissed accordingly.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 1104 of 2008

Jagdev

...Petitioner
Versus
Commissioner, Gorakhpur Division and
others

 ...Respondents

Counsel for the Petitioner:
Sri Sri R.C.Singh

Counsel for the Respondents:
Sri V.K. Singh
Sri R.N. Bhakta
S.C.

U.P. Z.A. & L.R Act-Section 122-C-
Allotment of land under section 115-Qrespondent failed to make any effort
either
to
get
possession
or
raise
construction within statutory period of 3
years-admittedly the petitioner never
disturbed
the
possession
inspite
of
knowledge
of
proceeding
since
99Dakhalnama executed in the year 2003direction for registration F.I.R against
petitioner-not sustainable-quashed -with
direction to proceed further keeping in
view
of
observation
after
affording
opportunity of hearing to both parties.

Held: Para-7

It is evident that Rule 115-Q prescribes a
clear time limit for raising constructions
after allotment for the purpose of which
it was allotted. In the instant case the
admitted position is that the land was
allotted in 1994 and no efforts appear to
have
been
made
either
for
taking
possession or for raising constructions
within three years of the date of
allotment. There is also no evidence to
indicate that it was the petitioner who
prevented the taking of such possession