Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 530

SUPREME COURT OF INDIA
Ashok Bhushan, K.M. Joseph, JJ.
GANESAN REP BY ITS POWER AGENT G. RUKMANI GANESAN – Appellant
Vs.
THE COMMISSIONER, THE TAMIL NADU HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS BOARD AND OTHERS – Respondent
Civil Appeal No. 4582 of 2019 (Arising Out of SLP(Civil) No. 30365 of 2018)
Decided on : 03-05-2019

Advocates Appeared:
Fr the Appellant:. Ajmal Khan, Sr. Advocate, Mr. Munusamy, Advocate and Mr. A. Lakshminarayanan, Advocate
Fr the Respondent:. S. Nagamuthu, Sr. Advocate, Mr. M.P. Parthiban, Advocate, Mr. Y. Arunagiri, Advocate, Mr. A.S. Vairawan, Advocate, Mr. R. Sudhakaran, Advocate and Mr. Vinodh Kanna B., Advocate.

IMPORTANT POINTS
Commissioner is an authority created under the Act, he is not a court.
Commissioner hearing appeal u/s 69 not being a court is not entitled to condone the delay in filing appeal.
Nothing in section 110 indicates applicability of Limitation Act to hearing of appeal u/s 69.
Section 115 excludes only the time requisite for obtaining a certified copy of order or decree from period of limitation.
Legislature never contemplated applicability of Section 5 in Section 69(1) for condoning the delay in filing an appeal.

Headnote:(a) Tamil Nadu Hindu Religious endowment charitable Act, 1959 - Section 6(6) and Section 6(7) - Commissioner and court - Commissioner is an authority created under the Act - Court means civil court. (Para 15)
       (b) Tamil Nadu Hindu Religious endowment charitable Act, 1959 - Section 6(6), 6(7) and Section 69 - Section 69 providing for appeal against order of Commissioner before a court defined in section 6(7) - Held, Commissioner not a court within meaning of the Act. (Para 17, 21)
       (1975) 4 SCC 22 - Relied upon
       (2000) 5 SCC 355 - Distinguished
       (c) Tamil Nadu Hindu Religious Endowment Charitable Act, 1959 - Section 69 r/w section 5 and 29(2), Limitation act, 1963 - Section 29(2) applies with regard to different limitations prescribed for any suit, appeal or application when to be filed in a Court - Thereby section 5 shall also apply to suits, appeal or application to be filed in a court - Commissioner hearing appeal u/s 69 not being a court is not entitled to condone the delay in filing appeal. (Para 40, 55)
       (2015) 7 SCC 58 - Relied upon
       (1969) 1 SCC 873; (1965) 2 SCC 199; (1976) 4 SCC 634; (1985) 3 SCC 590; (1996) 9 SCC 414; (2008) 7 SCC 169; (2016) 12 SCC 365 - Referred
       (1995) 5 SCC 5; (2014) 10 SCC 814 - Distinguished
       (d) Tamil Nadu Hindu Religious Endowment Charitable Act, 1959 - Section 110 r/w section 69 - Authority 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 - Shall not become a Court - Nothing in section 110 indicating applicability of Limitation Act to hearing of appeal u/s 69. (Para 58)
       (e) Tamil Nadu Hindu Religious Endowment Charitable Act, 1959 - Section 115 - Excluding only the time requisite for obtaining a certified copy of order or decree from period of limitation. (Para 59)
       (f) Section 69 (2) - Limitation of 60 days for filing appeal before Commissioner - Thereafter Commissioner empowered to call for and examine the records of the proceedings of Joint Commissioner or the Deputy Commissioner - Held, Legislature never contemplated applicability of Section 5 in Section 69(1) for condoning the delay in filing an appeal. (Para 61)
       (g) Application and Appeal Rules 1961 and Holding of Inquiries Rules, 1961 - Silent on applicability of section 5, Limitation Act, 1963. (Para 62, 63)
       Facts of the case:
       The appellant filed an application under Section 63 of Hindu Religious endowment charitable Act, 1959 claiming his Ambalam right. The Joint Commissioner of Hindu Religious & charitable endowment Board held the appellant to be entitled for Ambalam Right.
       The third respondent P.R. Ramanathan filed an appeal against the order passed by Joint Commissioner. The appeal filed by third respondent was under Section 69 of Act, 1959. The Commissioner condoned the delay of 266 days in filing the appeal.
       Against this order writ petition was filed by the appellant which was dismissed holding that section 5 of Limitation Act was applicable.
       Writ appeal has been filed by the appellant which has been dismissed by the impugned judgment.
       Finding of the Court:
       Section 5 of the Limitation Act is not applicable as per the scheme of Act, 1959.
       Result: Appeal allowed.

JUDGMENT

Ashok Bhushan, J.

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.

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 appellant 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 appellant 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.

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

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2019 Supreme(SC) 530

Cases Referred (13)