# GANESAN REP BY ITS POWER AGENT G. RUKMANI GANESAN v. THE COMMISSIONER, THE TAMIL NADU HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS BOARD & ORS

- **Citation:** [2019] 7 S.C.R. 102
- **Court:** Supreme Court of India
- **Decided:** 2019-05-03
- **Case number:** Civil Appeal No. 4582 of 2019
- **Bench:** Ashok Bhushan, K.M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ganesan-rep-by-its-power-agent-g-rukmani-ganesan-v-the-commissioner-the-tamil-33953
- **Pages:** 41

## Headnote

Hindu Religious Endowment Charitable Act, 1959 - ss.6(6),
6(7), 63, 69, 70, 110 and 115 - Limitation Act, 1963 - s.5 -
Applicability of - Joint Commissioner of the Hindu Religious and
Charitable Endowment Board passed an order holding that appellant
was entitled for Ambalam right in his village - Third respondent
filed an appeal u/s. 69 of the Act - A delay condonation application
was also filed by the third respondent praying for condonation of
delay of 266 days - Delay was condoned by the Commissioner -
Writ petition was filed by the appellant against the order condoning
delay - Single Judge of the High Court held that in appeal
proceedings before the Commissioner s.5 of the Limitation Act was
fully applicable - Division Bench of the High Court held that Act,
1959 does not exclude the applicability of the Limitation Act, 1963
- On appeal, held: The provisions of Limitation Act including s.5
can be applied in deciding an appeal by statutory authority which
is not a Court by the statutory scheme of special or local law -
Commissioner is not a Court within the meaning of the Act, 1959 -
There is nothing u/s.110 of the Act, 1959 which indicates that
Limitation Act is also made applicable in hearing of appeal - The
provision of s.69 of Act, 1959 also indicates that Legislature never
contemplated applicability of s.5 of the Limitation Act in proceedings
before Commissioner - Further, s.115 of the Act, 1959 indicates
that provision for only computation of limitation has been made
applicable the proceedings under Act, 1959 - s.115 of the Act, 1959
cannot be read in a manner as to providing applicability of s.5 of
the Limitation Act - There is no other provision in the scheme from
which it can be inferred that Act, 1959 intended applicability of s.5
 [2019] 7 S.C.R. 102
102
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of the Limitation Act to the proceedings of appeal before the
Commission - Thus, s.5 of the Limitation Act is not applicable as
per the scheme of the Act, 1959.
Hindu Religious Endowment Charitable Act, 1959 - s.69 -
Appellant contended that the Commissioner who is empowered to
decide the appeal u/s. 69 of Act, 1959 is not a Court - Held: The
definition of Court as contained in s.6(7) indicates that what Act,
1959 refers to a court is a civil court created in the State - The
scheme of the Act clearly indicates that Commissioner is an authority
under the Act who is to be appointed by the Government - The
Commissioner is entrusted with various functions under the Act and
one of the functions entrusted to the Commissioner is hearing of
the appeal u/s. 69 of the Act, 1959 - Further, any party aggrieved
by the order of the Commissioner u/s. 69(1) and 69(2) can file a
suit in the Court u/s.70 against such order - When an appeal is
provided against the order of the Commissioner u/s. 69 to the Court
which is defined u/s.6(7), there is no question of treating the
Commissioner as a Court under the statutory scheme of Act, 1959 -
Thus, Commissioner is not a Court within the meaning of Act, 1959.
Allowing the appeal, the Court
HELD: Whether the Commissioner while hearing the
appeal under Section 69 of Hindu Religious Endowment
Charitable Act, 1959 , is a Court ?
1. The definition of Court as contained in Section 6(7)
clearly indicates that what Act, 1959 refers to a Court is a civil
court created in the State. The scheme of the Act clearly indicates
that Commissioner is an authority under the Act who is to be
appointed by the Government. The Commissioner is entrusted
with various functions under the Act and one of the functions
entrusted to the Commissioner is hearing of the appeal under
Section 69 of the Act, 1959. [Para 15] [113-E]
2. Section 70 of the Act further provides that any party
aggrieved by an order of the Commissioner under sub-section
(1) or sub-section (2) of Section 69 can file a suit in the Court
against such order. When an appeal is provided against the order
of the Commissioner under Section 69 to the Court which is
defined under Sect

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SUPREME COURT REPORTS
[2019] 7 S.C.R.
GANESAN REP BY ITS POWER AGENT G. RUKMANI
GANESAN
v.
THE COMMISSIONER, THE TAMIL NADU HINDU
RELIGIOUS AND CHARITABLE ENDOWMENTS BOARD &
ORS.
(Civil Appeal No. 4582 of 2019)
MAY 03, 2019
[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
Hindu Religious Endowment Charitable Act, 1959 - ss.6(6),
6(7), 63, 69, 70, 110 and 115 - Limitation Act, 1963 - s.5 -
Applicability of - Joint Commissioner of the Hindu Religious and
Charitable Endowment Board passed an order holding that appellant
was entitled for Ambalam right in his village - Third respondent
filed an appeal u/s. 69 of the Act - A delay condonation application
was also filed by the third respondent praying for condonation of
delay of 266 days - Delay was condoned by the Commissioner -
Writ petition was filed by the appellant against the order condoning
delay - Single Judge of the High Court held that in appeal
proceedings before the Commissioner s.5 of the Limitation Act was
fully applicable - Division Bench of the High Court held that Act,
1959 does not exclude the applicability of the Limitation Act, 1963
- On appeal, held: The provisions of Limitation Act including s.5
can be applied in deciding an appeal by statutory authority which
is not a Court by the statutory scheme of special or local law -
Commissioner is not a Court within the meaning of the Act, 1959 -
There is nothing u/s.110 of the Act, 1959 which indicates that
Limitation Act is also made applicable in hearing of appeal - The
provision of s.69 of Act, 1959 also indicates that Legislature never
contemplated applicability of s.5 of the Limitation Act in proceedings
before Commissioner - Further, s.115 of the Act, 1959 indicates
that provision for only computation of limitation has been made
applicable the proceedings under Act, 1959 - s.115 of the Act, 1959
cannot be read in a manner as to providing applicability of s.5 of
the Limitation Act - There is no other provision in the scheme from
which it can be inferred that Act, 1959 intended applicability of s.5
 [2019] 7 S.C.R. 102
102
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of the Limitation Act to the proceedings of appeal before the
Commission - Thus, s.5 of the Limitation Act is not applicable as
per the scheme of the Act, 1959.
Hindu Religious Endowment Charitable Act, 1959 - s.69 -
Appellant contended that the Commissioner who is empowered to
decide the appeal u/s. 69 of Act, 1959 is not a Court - Held: The
definition of Court as contained in s.6(7) indicates that what Act,
1959 refers to a court is a civil court created in the State - The
scheme of the Act clearly indicates that Commissioner is an authority
under the Act who is to be appointed by the Government - The
Commissioner is entrusted with various functions under the Act and
one of the functions entrusted to the Commissioner is hearing of
the appeal u/s. 69 of the Act, 1959 - Further, any party aggrieved
by the order of the Commissioner u/s. 69(1) and 69(2) can file a
suit in the Court u/s.70 against such order - When an appeal is
provided against the order of the Commissioner u/s. 69 to the Court
which is defined u/s.6(7), there is no question of treating the
Commissioner as a Court under the statutory scheme of Act, 1959 -
Thus, Commissioner is not a Court within the meaning of Act, 1959.
Allowing the appeal, the Court
HELD: Whether the Commissioner while hearing the
appeal under Section 69 of Hindu Religious Endowment
Charitable Act, 1959 , is a Court ?
1. The definition of Court as contained in Section 6(7)
clearly indicates that what Act, 1959 refers to a Court is a civil
court created in the State. The scheme of the Act clearly indicates
that Commissioner is an authority under the Act who is to be
appointed by the Government. The Commissioner is entrusted
with various functions under the Act and one of the functions
entrusted to the Commissioner is hearing of the appeal under
Section 69 of the Act, 1959. [Para 15] [113-E]
2. Section 70 of the Act further provides that any party
aggrieved by an order of the Commissioner under sub-section
(1) or sub-section (2) of Section 69 can file a suit in the Court
against such order. When an appeal is provided against the order
of the Commissioner under Section 69 to the Court which is
defined under Section 6(7), there is no question of treating the
GANESAN v. COMMNR., T.N. HINDU RELIGIOUS & CHARITABLE
ENDOWMENTS BOARD
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Commissioner as a Court under the statutory scheme of Act,
1959. Thus, Commissioner is not a Court within the meaning of
Act, 1959. [Paras 16, 17] [114-D-E; 115-A]
Whether applicability of Section 29(2) of Limitation Act is
with regard to different limitation prescribed for any suit, appeal
or application to be filed only in a Court or Section 29(2) can be
pressed in service with regard to filing of a suit, appeal or
application before statutory authorities and tribunals provided in
Special or Local Laws?
Whether the Commissioner while hearing the appeal under
Section 69 of Act 1959 is entitled to condone a delay in filing an
appeal applying the provisions of Section 5 of the Limitation Act,
1963?
3. Both the questions being inter-connected are taken
together. The ratio which can be culled from the various Supreme
Court judgments, especially judgment of three-Judge Benches,
is as follows:
(1) The suits, appeals and applications referred to in the
Limitation Act, 1963 are suits, appeals and applications which
are to be filed in a Court.
(2) The suits, appeals and applications referred to in the
Limitation Act are not the suits, appeals and applications which
are to be filed before a statutory authority like Commissioner
under Act, 1959.
(3) Operation of Section 29(2) of the Limitation Act is
confined to the suits, appeals and applications referred to in a
special or local law to be filed in Court and not before statutory
authorities like Commissioner under Act, 1959.
(4) However, special or local law vide statutory scheme can
make applicable any provision of the Limitation Act or exclude
applicability of any provision of Limitation Act which can be decided
only after looking into the scheme of particular, special or local
law. [Para 54] [139-A-E]
3.1 Thus, questions are answered in the following manner:
(i) The applicability of Section 29(2) of the Limitation Act is
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with regard to different limitations prescribed for any suit, appeal
or application when to be filed in a Court.
(ii) Section 29(2) cannot be pressed in service with regard
to filing of suits, appeals and applications before the statutory
authorities and tribunals provided in a special or local law. The
Commissioner while hearing of the appeal under Section 69 of
the Act, 1959 is not entitled to condone the delay in filing appeal,
since, provision of Section 5 shall not be attracted by strength of
Section 29(2) of the Act. [Para 55] [139-E-G]
Whether the statutory scheme of Act 1959 indicate that
Section 5 of Limitation Act is applicable to proceedings before
its authorities?
4. A special or local law can very well provide for
applicability of any provision of Limitation Act or exclude
applicability of any provision of Limitation Act. The provisions of
Limitation Act including Section 5 can very well be applied in
deciding an appeal by statutory authority which is not a Court by
the statutory scheme of special or local law. This Court, thus,
need to notice the provisions of Act, 1959 as to whether the
scheme under Act, 1959 shows that enactment intended to apply
Section 5 of the Limitation Act. [Para 56] [139-H; 140-A-B]
5. The mere fact that a statutory authority is empowered to
follow the procedure as nearly may be in accordance with
procedure under C.P.C. to the trial of suits or hearing of appeals,
the statutory authority shall not become a Court. There is nothing
under Section 110 which indicates that Limitation Act is also made
applicable in hearing of the appeal. [Para 58] [140-F-G]
6. Section 115 deals with limitation. It only provides that in
computing the period of limitation prescribed under Act, 1959
for any proceeding, suit, appeal or application for revision against
any order or decree passed under this Act, the time requisite for
obtaining a certified copy of such order or decree shall be
excluded. [Para 59] [140-G-H]
7. The provision of Section 69 of Act, 1959 also indicates
that Legislature never contemplated applicability of Section 5 of
the Limitation Act in proceedings before Commissioner. Section
GANESAN v. COMMNR., T.N. HINDU RELIGIOUS & CHARITABLE
ENDOWMENTS BOARD
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69(2) noted above provides that any order passed by the Joint
Commissioner or the Deputy Commissioner, as the case may, in
respect of which no appeal has been preferred within the period
specified in sub-section (1) may be revised by the Commissioner
suo motu and the Commissioner may call for and examine the
records of the proceedings to satisfy himself as to the regularity
of such proceedings or the correctness, legality or propriety of
any decision or order passed by the Joint Commissioner or the
Deputy Commissioner, as the case may be. [Para 60] [141-A-C]
8. Thus, Section 69(2) gives suo motu power to the
Commissioner to call for and examine the records of the
proceedings of Joint Commissioner or the Deputy Commissioner
in respect of which no appeal has been preferred within the period
specified in sub-section (1). Thus, in a case appeal is not filed
within 60 days against the order of Joint Commissioner or the
Deputy Commissioner, the Commissioner is vested with suo motu
power to call for and examine the records. The suo motu power
has been given to the Commissioner to correct the orders of
Joint Commissioner or the Deputy Commissioner even if no
appeal has been filed within 60 days. Giving of suo motu power to
the Commissioner is with object to ensure that an order passed
by the Joint Commissioner or the Deputy Commissioner may be
corrected when appeal is not filed within time under Section 69(1).
The scheme of Section 69 especially sub-section (2) also reenforces our conclusion that Legislature never contemplated
applicability of Section 5 in Section 69(1) for condoning the delay
in filing an appeal by applying Section 5 of the Limitation Act.
[Para 61] [141-C-F]
9. The above provision clearly indicates that provision for
only computation of limitation has been made applicable to the
proceedings under Act, 1959. Section 115 cannot be read in a
manner as to providing applicability of Section 5. There is no
other provision in the scheme from which it can be inferred that
Act, 1959 intended applicability of Section 5 of the Limitation
Act to proceedings of appeal before the Commission. Thus,
Section 5 of the Limitation Act is not applicable as per the scheme
of Act, 1959. [Para 63] [142-A-B]
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P. Sarathy v. State of Bank of India (2000) 5 SCC
355:[2000] 1 Suppl. SCR 402 - distinguished.
The Commissioner of Sales Tax, U.P. Lucknow v. M/s.
Parson Tools and Plants, Kanpur (1975) 4 SCC 22 ;
Town Municipal Council, Athani v. The Presiding
Officer, Labour Courts, Hubli (1969) 1 SCC 873 : [1970]
1 SCR 51 ; Nityananda, M. Joshi and others. v. Life
Insurance Corporation of India and others (1965) 2
SCC 199 ; Sakuru v. Tanaji, 1985 (3) SCC 590 : [1985]
2 Suppl. SCR 109 ; Officer on Special Duty (Land
Acquisition) and another v. Shah Manilal Chandulal
and others (1996) 9 SCC 414 ; Consolidated
Engineering Enterprises v. Principal Secretary,
Irrigation Department and others (2008) 7 SCC 169 ;
M.P. Steel Corporation v. Commissioner of Central
Excise 2015 (7) SCC 58 - relied on.
The Kerala State Electricity Board, Trivandrum v. T.P.
Kunhaliumma (1976) 4 SCC 634 : [1977] 1 SCR 996 ;
The Commissioner of Sales Tax, U.P. v. M/s. Madan Lal
Das & Sons, Bareilly (1976) 4 SCC 464 ; State of
Madhya Pradesh and another v. Anshuman Shukla
(2014) 10 SCC 814 : [2014] 11 SCR 361 ; Syed Zalil
Akhtar v. Zila Sahkari Krishi Avam Gramn Vikas Bank,
Mydt., (2016) 12 SCC 365 ; Mukri Gopalan v. Cheppilat
Puthanpurayil Aboobacker (1995) 5 SCC 5 : [1995] 2
Suppl. SCR 1 - referred to.
Case Law Reference
[2000] 1 Suppl. SCR 402
distinguished
Para 18
(1975) 4 SCC 22
relied on
Para 20
[1970] 1 SCR 51
relied on
Para 25
(1965) 2 SCC 199
relied on
Para 26
[1977] 1 SCR 996
referred to
Para 29
[1985] 2 Suppl. SCR 109
relied on
Para 31
(1996) 9 SCC 414
referred to
Para 33
GANESAN v. COMMNR., T.N. HINDU RELIGIOUS & CHARITABLE
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(2008) 7 SCC 169
relied on
Para 34
2015 (7) SCC 58
relied on
Para 39
(1976) 4 SCC 464
referred to
Para 41
[1995] 2 Suppl. SCR 1
referred to
Para 45
[2014] 11 SCR 361
referred to
Para 50
(2016) 12 SCC 365
referred to
Para 52
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4582
of 2019.
From the Judgment and Order dated 04.12.2017 of the Madurai
Bench of Madras High Court in W.A. (MD) No. 1094 of 2014.
M. Ajmal Khan, Sr. Adv., A. Lakshminarayanan, Karri Venkata
Reddy, Advs. for the Appellant.
S. Nagamuthu, Sr. Adv., M. P. Parthiban, R. S. Vairakkin, R.
Sudhatiavan, Vinodh Kanna B., Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This appeal has been filed against the judgment dated 04.12.2017
of Madurai Bench of Madras High Court dismissing the writ appeal
filed by the Appellant. The appellant had filed the writ appeal against the
judgment of learned single Judge dated 22.08.2014 by which judgment
writ petition filed by the appellant challenging the judgment and order
dated 31.07.2013 of the Commissioner Tamil Nadu Hindu Religious
Endowment Board has been dismissed.
2. Brief facts of the case necessary to be noticed for deciding the
appeal are: -
2.1
The appellant filed an application under Section 63 of Hindu
Religious endowment charitable Act, 1959 (hereinafter
referred to as Act 1959) claiming his Ambalam right. The
Joint Commissioner of Hindu Religious & charitable
endowment Board after holding an inquiry passed an order
dated 21.12.2010 holding that appellant to be entitled for
Ambalam Right and to receive first respect as an Ambalam
in the village, Tirupathartalu, Shiv Gangi District, Tamil Nadu.
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2.2
Two writ petitions were filed in the High Court challenging
the order dated 31.12.2010 being W.P.M.D. No. 14382 of
2011 filed by Radha Krishnan and W.P. No.185 of 2012 filed
by Madhavan. Both the writ petitions were dismissed by the
High Court vide its judgment dated 10.01.2012. A W.P.M.D.
No. 379 of 2012 was filed by one Laxmanan in which initially
an interim order dated 12.01.2012 was passed. The third
respondent P.R. Ramanathan filed an appeal No.2007 OF
2012 against the order dated 31.12.2010 passed by Joint
Commissioner. The appeal filed by third respondent was
under Section 69 of Act, 1959. W.P.M.D. No.3379 of 2013
was filed by P.R. Ramanathan, third respondent, seeking a
direction to decide his statutory appeal filed under Section
69 of Act 1959. The High Court vide its judgment and order
dated 07.03.2013 directed the commissioner to dispose of
the appeal expeditiously and in any case within a period of
four months to the date of the copy of the order.
2.3
A delay condonation application dated 30.04.2013 was filed
by third respondent in his appeal no. 2007 of 2012 praying
for condonation of delay of 266 days. The cause for delay
shown was that third respondent was ill for 7-8 months and
was unable to travel to Chennai to instruct his counsel. A
counter affidavit was filed by the appellant objecting the
application filed by the third respondent for condonation of
delay. In his counter affidavit appellant took a plea that Section
5 of the Limitation Act is not applicable.
2.4
Learned commissioner passed an order dated 31.07.2013
condoning the delay of 266 days in filing the appeal. Against
the order dated 31.07.2013, writ petition was filed by the
appellant being W.P.M.D. No. 13804 of 2013. Learned single
Judge referring to certain provision of the Act 1959 as well
as few decisions of this Court and Madras High Court held
that in appeal proceedings before the Commissioner Section
5 of the Limitation Act is fully applicable and there is sufficient
cause and the delay has rightly been condoned by the
Commissioner. Aggrieved against the judgment of learned
single Judge, writ appeal has been filed by the appellant which
has been dismissed by the impugned judgment.
GANESAN v. COMMNR., T.N. HINDU RELIGIOUS & CHARITABLE
ENDOWMENTS BOARD [ASHOK BHUSHAN, J.]
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2.5
The Division Bench of the Madras High Court placed
reliance on several judgments of this Court and after referring
to various provisions of the Act, 1959, held that Act 1959
does not exclude the applicability of the Limitation Act, 1963.
The appellant aggrieved by the Division Bench judgment
dated 04.12.2017 has come up in this appeal.
3. We have heard Shri M. Ajmal Khan, senior Advocate for the
appellant and Shri S.Nagvathu, senior Advocate appearing for the third
respondent, as well as learned counsel appearing for the State.
4. Learned counsel for the appellant submits that the commissioner
has no jurisdiction to consider application filed under Section 5 of Limitation
Act. It is submitted that the commissioner who is empowered to decide
the appeal under Section 69 of Act 1959 is not a court. He submits that
Section 6(6) defines the commissioner whereas Section 6(7) defines the
Court, which clearly indicate that commissioner is not the court. It is
submitted that Section 5 of the Limitation Act is applicable only in
application filed before a Court. The commissioner being not a Court,
there was no applicability of Section 5 of the Limitation Act.
5. He further submits that by virtue of Section 115 of Act 1959,
the only provision of the Limitation Act which has been made applicable
is that the time requisite for obtaining certified copy of order or decree
shall be excluded. He submits that specifically applying provisions of
Section 12(2) of Limitation Act, indicates that other provisions have not
been made applicable to the Act 1959. He submits that in event the
limitation Act was to be applicable to the proceeding of appeal under
1959 Act, there was no occasion of Section 115 of Act 1959. Limitation
Act has been applied only to the extent as mentioned in Section 115,
other provisions are not applicable.
6. Learned counsel for the respondent refuting the submissions of
learned counsel for the appellant submits that although Commissioner is
not a Court as defined in Act 1959, but it is a court for the purposes of
Section 5 of the Limitation Act. Relying on Section 110, he submits that
procedure provided for hearing of appeal is as nearly as may be in
accordance with the procedure under the Code of Civil Procedure, 1908
to the trial of suits or the hearing of the appeals as the case may be. The
Commissioner has thus all powers of the Court for hearing the appeal.
The authorities under Act 1959 had trappings of the court. Commissioner
decide the appeal in a judicial manner. The scheme of Act 1959 does not
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indicate that it never intended to exclude Section 5 of the Limitation Act.
Reliance has been placed on Section 29(2) of the Limitation Act and it is
submitted that there being no express exclusion of Section 5 of the
Limitation Act, Section 5 of the Limitation Act is fully attracted in hearing
of an appeal by the commissioner.
7. Learned counsel for both the parties have placed reliance on
various judgments of this court which shall be referred to while
considering their submissions in detail.
8. After hearing learned counsel for both the parties and perusal
of the record, following are the questions which arises for consideration
in this appeal:-
1)
Whether the Commissioner while hearing the appeal under
Section 69 of Act, 1959, is a Court?
2)
Whether applicability of Section 29(2) of Limitation Act is
with regard to different limitation prescribed for any suit,
appeal or application to be filed only in a Court or Section
29(2) can be pressed in service with regard to filing of a suit,
appeal or application before statutory authorities and tribunals
provided in Special or Local Laws?
3)
Whether the Commissioner while hearing the appeal under
Section 69 of Act 1959 is entitled to condone a delay in filing
an appeal applying the provisions of Section 5 of the Limitation
Act, 1963?
4)
Whether the statutory scheme of Act 1959 indicate that
Section 5 of Limitation Act is applicable to proceedings before
its authorities?
Question No.1
9. The above question has to be answered in reference to the
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
Both the "Commissioner" and "Court" has been defined under the Act,
1959. The Commissioner is defined under Section 6(6) which is to the
following effect:
"Section 6(6) "Commissioner" means the Commissioner appointed
under section 9;"
10. The Court is defined in Section 6(7) in the following manner:
GANESAN v. COMMNR., T.N. HINDU RELIGIOUS & CHARITABLE
ENDOWMENTS BOARD [ASHOK BHUSHAN, J.]
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"Section 6(7) "Court" means- (i) in relation to a math or temple
situated in the Presidency town, the Chennai City Civil Court;
(ii) in relation to a math or temple situated elsewhere, the
Subordinate Judge's Court having jurisdiction over the area in
which the math or temple is situated, or if there is no such Court,
the District Court having such jurisdiction;
(iii) in relation to a specific endowment attached to a math or
temple, the Court which would have jurisdiction as aforesaid in
relation to the math or temple;
(iv) in relation to a specific endowment attached to two or more
maths or temples, any Court which would have jurisdiction as
aforesaid in relation to either or any of such maths or temples;"
11. Section 8 of the Act, 1959 enumerates the authorities under
the Act. Section 8 is as follows:-
"Section 8.Authorities under the Act.- There shall be the
following classes of authorities under this Act, namely.-
(a) The Commissioner;
(aa) Additional Commissioner;
(b) Joint Commissioner;
(c) Deputy Commissioners; and
(d) Assistant Commissioners."
12. Section 9(1) provides that the Government shall appoint the
Commissioner as it may think fit. Section 9(2) provides various modes
of appointment to the post of Commissioner.
13. The definition of the Court refers to the Civil Court constituted
by Legislature in the State for administration of justice. The conventional
definition of the Court as mentioned in Advanced Law Lexicon by P.
Ramanatha Aiyer, Third Edition is:
"A Court is defined in Coke on Littleton as a place wherein justice
is judicially administered. "In every Court, there must be at least
three constituent parts- the actor, reus and judex: the actor, or
plaintiff, who complains or an injury done; the reus, or defendant,
who is called upon to make satisfaction for it; and the judex, or
judicial power, which is to examine the truth of the fact, and to
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determine the law arising upon that fact, and if any injury appears
to have been done, to ascertain, and b its officers to apply, the
remedy," (3 Steph. Comm. 6th Ed., pp.383, 385). See also 30 M.
326: 2 MLT 267, Court is a body in the government to which the
public administration of justice is delegated; an organised body,
with defined powers, meeting at certain times, and places, for the
hearing and decision of causes and other matters brought before
it, and aided in this, its proper business, by its proper officers, viz.,
attorneys and counsels, to present and manage the business, clerks
to record and attest its acts and decisions, and ministerial officers
to execute its commands and secure order in its proceedings."
14. The constitution of Court in this country has been by legislative
enactments. For constituting Civil Courts, the Bengal, Agra and Assam
Civil Courts Act, 1887 was enacted which provided classes of civil courts
and provided for constitution of courts of District Judges, Sub-ordinate
Judges and Munsifs. Similarly for civil courts in the town of Bombay,
Calcutta and Madras, the Presidency Small Causes Act, 1882 was
enacted.
15. The definition of Court as contained in Section 6(7) as noted
above, thus, clearly indicates that what Act, 1959 refers to a Court is a
civil court created in the State. The scheme of the Act clearly indicates
that Commissioner is an authority under the Act who is to be appointed
by the Government. The Commissioner is entrusted with various functions
under the Act and one of the functions entrusted to the Commissioner is
hearing of the appeal under Section 69 of the Act, 1959. In the present
case we are concerned with Section 69 which is to the following effect:
"Section 69.Appeal to the Commissioner.-
(1) Any person aggrieved by any order passed by 1[the Joint
Commissioner or the Deputy Commissioner, as the case may be],
under any of the foregoing sections of this chapter, may within
sixty days from the date of the publication of the order or of the
receipt thereof by him as the case may be, appeal to the
Commissioner and the Commissioner may pass such order thereon
as he thinks fit.
(2) Any order passed by 1[the Joint Commissioner or the Deputy
Commissioner, as the case may be], in respect of which no appeal
has been preferred within the period specified in sub-section (1)
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may be revised by the Commissioner suo motu and the
Commissioner may call for and examine the records of the
proceedings as to satisfy himself as to the regularity of such
proceedings or the correctness, legality or propriety of any decision
or order passed by 1[the Joint Commissioner or the Deputy
Commissioner, as the case may be]. Any such order passed by
the Commissioner in respect of an order passed by 1[the Joint
Commissioner or the Deputy Commissioner, as the case may be],
shall be deemed to have been passed by the Commissioner on an
appeal preferred to him under sub-section (1).
(3) Any order passed by the Commissioner on such appeal against
which no suit lies to the Court under the next succeeding section
or in which no suit has been instituted in the Court within the time
specified in sub-section (1) of section 70 may be modified or
cancelled by the Commissioner if the order has settled or modified
a scheme for the administration of a religious institution or relates
to any of the matters specified in section 66."
16. Section 70 of the Act further provides that any party aggrieved
by an order of the Commissioner under sub-section (1) or sub-section
(2) of Section 69 can file a suit in the Court against such order. Section
70 is as follows:
"Section 70. Suits and appeals.- (1) Any party aggrieved by
an order passed by the Commissioner"-
(i) under sub-section (1) or sub-section (2) of section 69 and relating
to any of the matters specified in section 63, section 64 or section
67; or
(ii) under section 63, section 64 or section 67 read with sub-section
(1)(a), 2 or (4)(a) of section 22 or under section 65 may, within
ninety days from the date of the receipt of such order by him,
institute a suit in the Court against such order, and the Court may
modify or cancel such order, but it shall have no power to stay of
order of the Commissioner pending the disposal of the suit.
(2) Any party aggrieved by a decree of the Court under subsection (1), may, within ninety days from the date of the decree,
appeal to the High Court."
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17. When an appeal is provided against the order of the
Commissioner under Section 69 to the Court which is defined under
Section 6(7), there is no question of treating the Commissioner as a
Court under the statutory scheme of Act, 1959. We, thus, conclude that
Commissioner is not a Court within the meaning of Act, 1959.
18. We may, however, notice a judgment of this Court in P. Sarathy
vs. State of Bank of India, (2000) 5 SCC 355. In the above case
Deputy Commissioner of Labour(Appeals) was an authority constituted
under Section 41(2) of Tamil Nadu Shops and Establishments Act, 1947
to hear and decide appeal. The appellant, an official of the State Bank of
India was removed by an order dated 11.01.1983 after holding regular
departmental proceedings. The appellant had filed an appeal under Section
41(2) of the Tamil Nadu Shops and Establishments Act, 1947 which
appeal was dismissed holding that provisions of Tamil Nadu Shops and
Establishments Act, 1947 are not applicable to nationalized Banks. After
the dismissal of the said appeal the orders of Deputy Commissioner of
Labour(Appeals) dated 01.09.1987 was challenged in this Court which
too are rejected. It was thereafter appellant instituted a regular suit in
the City Civil Court where the question came for consideration regarding
applicability of Section 14 of Limitation Act. In the above case in
paragraph 3 the issue was noted to the following effect:
"3. In order to bring a suit within the period of limitation, the
appellant claimed benefit of Section 14 of the Limitation Act on
the ground that he had represented to the Local Board and,
thereafter, filed an appeal under Section 41(2) of the Tamil Nadu
Shops and Establishments Act, 1947 and was, therefore,
prosecuting "civil proceedings" in a court with due diligence. It is
claimed that the entire period during which those proceedings were
pending has to be excluded and if this is done, the suit will be well
within limitation."
19. In the above context, this Court in paragraphs 12 to 15 laid
down following:
"12. It will be noticed that Section 14 of the Limitation Act does
not speak of a "civil court" but speaks only of a "court". It is not
necessary that the court spoken of in Section 14 should be a "civil
court". Any authority or tribunal having the trappings of a court
would be a "court" within the meaning of this section.
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15. Applying the above principles in the instant case, we are of
the opinion that the Deputy Commissioner of Labour (Appeals),
which was an authority constituted under Section 41(2) of the
Tamil Nadu Shops and Establishments Act, 1947 to hear and decide
appeals, was a "court" within the meaning of Section 14 of the
Limitation Act and the proceedings pending before him were civil
proceedings. It is not disputed that the appellant could file an appeal
before the Local Board of the Bank, which was purely a
departmental appeal. In this view of the matter, the entire period
of time from the date of institution of the departmental appeal as
also the period from the date of institution of the appeal under
Section 41(2) before the Deputy Commissioner of Labour
(Appeals) till it was dismissed will, therefore, have to be excluded
for computing the period of limitation for filing the suit in question.
If the entire period is excluded, the suit, it is not disputed, would
be within time."
20. There are two reasons due to which the above case is not
applicable in the present case. Firstly, in the above case this Court was
considering applicability of Section 14 of Limitation Act for excluding
time (civil proceeding). The present is a case where applicability of
Section 5 of the Limitation Act has to be examined. Thus, the above
judgment is distinguished. The second reason for not relying the above
judgment is three-Judge Bench judgment of this Court in The
Commissioner of Sales Tax, U.P. Lucknow vs. M/s. Parson Tools
and Plants, Kanpur, (1975) 4 SCC 22. In the above case under the
U.P. Sales Tax Act, 1948 the appellate authority has been constituted.
The question arose as to whether the period taken in pursuing the appellate
proceedings can be excluded by applying Section 14 of the Limitation
Act for purposes of filing revision before the Revisional Authority under
Section 10(3-B) of the U.P. Sales Tax Act, 1948. In the above context,
this Court held that appellate authority and the Judge(Revisions) are not
courts, hence, Section 14 of the Limitation Act shall not be applicable. In
paragraph 9 following has been laid down:
"9. The above observations were quoted with approval by this
Court in Jagannath Prasad case1 and it was held that a Sales
Tax Officer under U.P. Sales Tax Act, 1948 was not a court
within the meaning of Section 195 of the Code of Criminal
Procedure although he is required to perform certain quasi-judicial
functions. The decision in Jagannath Prasad case it seems, was
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not brought to the notice of the High Court. In view of these
pronouncements of this Court, there is no room for argument that
the Appellate Authority and the Judge (Revisions) Sales tax
exercising jurisdiction under the Sales Tax Act, are "courts". They
are merely Administrative Tribunals and "not courts". Section 14,
Limitation Act, therefore, does not, in terms apply to proceedings
before such tribunals."
21. There being three-Judge Bench judgment having held that
appellate authority under U.P. Sales Tax Act is not a Court, we are not
persuaded to follow the judgment of two-Judge Bench in P Sarthy
(supra).
Question Nos.2 and 3
22. Both the above questions being inter-connected are taken
together. The main question to be answered in this appeal is as to; whether
the Commissioner while hearing appeal under Section 69 of the Act,
1959 is entitled to condone the delay in filing an appeal by applying the
provision of Section 5 of the Limitation Act, 1963? Whether on the
strength of Section 29(2) of the Limitation Act, 1963 provisions of Sections
4 to 24 (inclusive of the Limitation Act) shall apply in the proceedings of
appeal before Commissioner under Section 69 of the Act, 1959? When
by special or local law a different period of limitation is prescribed for
any suit, appeal or application, the suit, appeal or application contemplated
under Section 29(2) are suit, appeal or application in a Court or Section
29(2) shall also cover suit, appeal or application which are to be filed
before the statutory authorities or quasi-judicial authorities and tribunals
also?
23. The Limitation Act, 1963 is an Act to consolidate and amend
the law for the limitation of suits and other proceedings and for purposes
connected therewith. The law of Limitation before enactment of Act,
1963 was governing by the law of limitation under Indian Limitation Act,
1908. The different provisions of Limitation Act, 1963 refers to 'Court'.
Section 4 provides where the prescribed period for any suit, appeal or
application expires on a day when the court is closed, the suit, appeal or
application may be instituted, preferred or made on the day when the
court reopens. Similarly, Section 5 provides that any appeal or any
application, other than an application under any of the provisions of Order
XXI of the Code of Civil Procedure, 1908 may be admitted after the
prescribed period, if the appellant or the applicant satisfies the court that
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he has sufficient cause for not preferring the appeal or making the
application within such period. Section 6 refers to institution of a suit or
making of application for the execution of a decree by a minor or insane,
or an idiot who may institute the suit or make the application within the
same period after the disability has ceased.
24. Sections 9,10 and 11 refer to suit. Section 12 deals with
computation of period of limitation. The section refers to computation of
period of limitation for an appeal or an application for leave to appeal or
for revision or for review of a judgment, obviously was meant for judgment
of a court. Section 13 again refers to Court. Section 14 specifically refers
to the Court. Section 14 of the Act is as follows:
"Section 14. Exclusion of time of proceeding bona fide in
court without jurisdiction. -(1) In computing the period of
limitation for any suit the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding, whether
in a court of first instance or of the appeal or revision, against the
defendant shall be excluded, where the proceeding relates to the
same matter in issue and is prosecuted in good faith in a court
which, from defect of jurisdiction or other cause of a like nature,
is unable to entertain it.
(2) In computing the period of limitation for any application, the
time during which the applicant has been prosecuting with due
diligence another civil proceeding, whether in a court of first
instance or of appeal or revision, against the same party for the
same relief shall be excluded, where such proceeding is prosecuted
in good faith in a count of first instance or of appeal or revision,
against the same party for the same relief shall be excluded, where
such proceeding is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature, is unable to
entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII
of the Code of Civil Procedure, 1908 (5 of 1908), the provisions
of sub-section (1) shall apply in relation to a fresh suit instituted
on permission granted by the court under rule of that Order, where
such permission is granted on the ground that the first suit must
fail by reason of a defect in the jurisdiction of the court of other
cause of a like nature.
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Explanation - For the purpose of this section, -
(a) in excluding the time during which a former civil proceeding
was pending, the day on which that proceeding was instituted
and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed
to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed
to be a cause of a like nature with defect of jurisdiction."
21. Subsequent Sections 16 and 17 refer to suits. Sections 18 to
21 again contain different provisions pertaining to computation of limitation.
Thereafter comes Section 29, which is a saving provision. Section 29 is
as follows:
"Section 29. Savings. - (1) Nothing in this Act, shall affect
section 25 of the Indian Contract Act,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 sit, appeal or application by any special or local law, the
provisions contained in section 5 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.
(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 may for the time being extend.
22. The Schedule of the Act provides for "Periods of Limitation".
First Division deals with different kinds of suits. Second Division deals
with appeals and Third Division deals with applications. The suits, appeals
and applications which have been referred to in the Schedule obviously
mean suits, appeals and applications to be filed in Court as per the
provisions referred to in the Act noted above.
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