IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 17101 of 2000(J)
1. MARY THOMAS
... Petitioner
Vs
1. APPELLATE TRIBUNAL
... Respondent
For Petitioner :SRI.M.G.KARTHIKEYAN
For Respondent :SRI.P.S.SREEDHARAN PILLAI, SCGSC
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :04/12/2009
O R D E R
S.SIRI JAGAN, J.
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O.P.No. 17101 of 2000
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Dated this the 4th day of December, 2009
J U D G M E N T
The petitioner approached this Court by filing O.P.No.19334/ 1999 and
obtained Ext.P3 judgment directing the Tribunal to consider and pass orders
on the petitioner’s appeal against Ext.P1 order of the competent authority
under the the Smugglers and Foreign Exchange Manipulators (Forfeiture of
Property) Act, 1976, forfeiting certain properties belonging to the petitioner
on the ground that the properties were acquired with the funds of her late
husband who was a detenue under the Conservation of Foreign Exchange
and Prevention of Smugglers Activities Act. By Ext.P4, that appeal was
dismissed on the ground that the appeal was filed beyond the period of
limitation prescribed under the Act and also beyond the period the Appellate
Tribunal has power to condone delay. The petitioner is challenging Exts.P1
and P4 orders in this original petition.
2. Since, in view of the Division Bench decision of this Court in
Assistant Commissioner of Central Excise v. Krishna Poduval [2005 (4) KLT
947], which holds that if an appeal is not filed within the time stipulated
under a legislation restricting power of the appellate authority to condone
delay, this Court cannot entertain writ petitions under Article 226 of the
Constitution of India to consider the challenge against the original order on
merits, I directed the counsel for the petitioner to argue on that question
first.
3. The contention of the petitioner is that Ext.P1 order was served
on the petitioner on 15.4.1999 and the petitioner had forwarded the appeal
o.p.17101/2000 2
to the Tribunal on 20.5.1999, which the Tribunal refused to receive and
returned the to the petitioner’s counsel on 12.6.1999. According to the
petitioner, the petitioner resubmitted the appeal immediately thereafter and
the same was received by the Tribunal on 15.6.1999. Before the appellate
authority, the competent authority produced acknowledgement signed by the
petitioner having received the order of the competent authority on
26.3.1999. The Tribunal directed the petitioner to produce the cover in which
the appeal filed by the petitioner was returned by the Tribunal without
accepting the same. The petitioner was not able to produce the same.
Therefore, the Tribunal concluded that, in the absence of any other evidence
to show that the petitioner filed appeal on 20.5.1999, the date of filing the
appeal was taken as 15.6.1999. Since such filing was beyond the condonable
limit prescribed in the Act, the Tribunal rejected the same.
4. Before me also the petitioner is unable to give any convincing
evidence to show that the petitioner had in fact filed the appeal within the
condonable limit prescribed under the Act. In the decision in Krishna
Poduval’s case (supra), a Division Bench Division Bench of this Court had,
relying on the decision of the Supreme Court in Commissioner of Sales Tax,
Uttar Pradesh v. Parson Tools and Plants, Kanpur, reported in (1975) 35 STC
413, held as follows:
7. At the outset we may state that in so far as the respondents
have not taken up the original orders imposing penalty in appeals
before the appellate authority within the maximum period prescribed
under S.85(3) of the Finance Act, 1994, they cannot get the appeals
revived and heard on merits by resorting to the discretionary remedy
before this Court under Article 226 of the Constitution of India. Onceo.p.17101/2000 3
the period of limitation has run itself out and the appellate authority
does not have power to condone the delay in filing the appeals beyond
the maximum period prescribed under the Act, the remedies of the
appellants come to an end just like in the case of a time barred suit
and the respondents cannot, by invoking the discretionary remedy
under the extraordinary jurisdiction of this court under Article 226 of
the Constitution of India, resurrect their unenforceable cause of action
and require this court to consider their contentions against the original
orders on merit. That would amount to defeating the very law of
limitation which we are not expected to do under Art.226. If we are to
entertain the contentions of the respondents on merits, that would
amount to negating the law of limitation which we have no jurisdiction
to do under Article 226 and which may even lead no anomalous
results. We are not satisfied that the jurisdiction of this Court under
Art.226 of the Constitution of India is so wide as to resurrect a cause
of action which has become unenforceable on account of the law of
limitation. Further, we are of the firm opinion that the jurisdiction
under Art.226 of the Constitution of India cannot be invoked against
express statutory provisions, however harsh the effect of the
provisions may be on an assessee or litigant.”
In view of the said decision, I do not think that I can consider the
validity of Ext.P1 in proceedings under Article 226 of the Constitution of India
when appeal filed against that order has become barred by limitation and has
been dismissed as such. Accordingly, this original petition is dismissed.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
o.p.17101/2000 4
S.SIRI JAGAN, J.
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O.P.No. 17101 of 2000-J
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J U D G M E N T
4th December, 2009