W.P.(C) No.18034 of 2015

22.02.2017

Heard Mr. Falguni Rajguru Mohapatra, learned counsel appearing for the petitio

ner, Mr. S.C. Dash, learned counsel for the NESCO-Opposite Party No.2 and learned Addl. Standi

ng Counsel for the State.

This is the second journey of the petitioner to this Court. Earlier, he has fi

led a writ petition bearing W.P.(C) No.24567 of 2014, challenging the order of assessment. Thi

s Court considering the availability of an alternative forum disposed of the W.P. giving liber

ty to the petitioner to file an appeal under Section 127 of the Electricity Act along with pet

ition for condonation of delay. Accordingly, the petitioner filed an appeal along with petitio

n for condonation of delay before the Executive Engineer, Electrical, NESCO, BED, Baripada, Ma

yurbhanj. In Case No.ACC-02/15, as per order dated 28.02.2015, Appellate Authority dismissed t

he appeal by refusing to condone the delay in preferring the appeal. Appellate Authority has m

entioned that the application for condonation of delay has been signed by an Authorised repres

entative instead of the Appellant himself. Hence, without considering the question of condonat

ion of delay, application for condonation of delay in filing the appeal was dismissed.

Assailing the order passed by the learned Appellate Authority, the learned cou

nsel for the petitioner drew attention of the Court to the Orissa Electricity Regulatory Commi

ssion (Procedure for filing before the Appellate Authority) Regulation, 2004, wherein regulati

on has been made by the OERC for filing procedure of appeal under Section 127 of the Electrici

ty Act, 2003 and disposal of the same.

It is apt to quote the Regulation. It reads as follows:-

Regulation-3 Filing of appeal (1) Any person aggrieved by a final order made b

y an assessing officer under Section 126 of the Act, may, within 30 days of the order, file an

appeal before the Appellate Authority. (2) The appeal shall be made in the form specified in

the Schedule. (3) The Memorandum of Appeal shall be signed and verified in the manner specif

ied in the

Schedule.

Schedule appended to the aforesaid Regulation provides for exact format for fi

ling appeal before the Appellate Authority under the Electricity Act. There is no provision fo

r condonation of delay application under Section 127 of Electricity Act, 2003 or in the Orissa

Electricity Regulatory Commission (Procedure for Filing Appeal before the Appellate Authority

) Regulation, 2004. So the statutory appeal shall be guided by Section 5 of the Limitation Act

.

Section 5 of the Limitation Act reads as follows:-

Extension of prescribed period in certain cases.- Any appeal or any applicatio

n, other than an application under any of the provisions of Order XXI of the Code of Civil Pro

cedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant s

atisfied the Court that he had sufficient cause for not preferring the appeal or making the ap

plication within such period.

In the case of Collector Land Acquisition, Anantnag Vs. Mst. Katiji & Others 1

987 AIR 1353, the Supreme Court has laid down the guidelines for considering the applications

under Section 5 of the Limitation Act. The Honble Supreme Court has laid down that legislature

has conferred the power to condone the delay by enacting Section 5 of the Indian Limitation A

ct, 1963 in enabling the court to do substantial justice to the parties by disposing the matte

rs on merit. The expression sufficient cause employed by the legislature is adequately elastic

to enable the court to apply the law in a meaningful manner, which subserves the ends of just

ice that being the life purpose for the existence of the institution of the courts. The Honble

Supreme Court further observed that it has been making a justifia