Abdul Majeed P.T. v. The Secretary, Regional Transport Authority, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930** **WP(C).No. 8527 of 2008(Y)** **-------------------------------------** **PETITIONER:** **------------------** **ABDUL MAJEED P.T., THARAMMAL PARAMBA, CHEVARAMBALAM P.O., KOZHIKODE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI. T.K.RATNAKARAN, AGED 38 YEARS, S/O.BHASKARA PANICKER, VIDHYA NIVAS, B.C.ROAD, BEYPORE, KOZHIKODE.** **BY ADV. SRI.P.S.SREEDHARAN PILLAI, SMT.C.G.PREETHA, SMT.P.RANI DIOTHIMA.** **RESPONDENT:** **---------------------** **THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOZHIKODE.** **BY GOVT. PLEADER SRI. K.V. MANOJ KUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2008,THE COURT ON 19/09/2008 DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.8527/2008-M:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE PROCEEDING DTD. 25/04/2007 REJECTING THE APPLICATION FOR REMOVAL OF REGULAR PERMIT.** **EXT.P.1.A: COPY OF THE ORDER NO. C3/06657/20070 DTD. 29/06/2007 ISSUED BY THE RESPONDENT.** **EXT.P.2: COPY OF THE JUDGMENT DTD. 30/11/2007 IN APPEAL NO...../2007 (UNNUMBERED) OF THE STAT, ERNAKULAM.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **prv.** ## ANTONY DOMINIC, J. =============== W.P.(C) NO. 8527 OF 2008 M ==================== Dated this the 19[th] day of September, 2008 J U D G M E N T In this writ petition, petitioner seeks to quash Ext. P2 judgment of the State Transport Appellate Tribunal, dismissing his appeal against Ext. P1 proceedings of the RTA. Admittedly, the appeal was filed belatedly and the learned Tribunal held that in view of the judgment of this Court in District Executive Officer v. Abel {2006 (2) KLT 758}, Section 5 of the Limitation Act is not applicable to the Tribunal. On that ground, the petition for condonation of delay was dismissed and consequently the appeal was also dismissed. 2. Learned counsel for the petitioner, inviting my attention to the Division Bench in Pushpakaran v. Union of India {2008(1) KLT 161} contended that since the Tribunal has all the trappings of a court, the finding that Section 5 of the Limitation Act is inapplicable, is incorrect and therefore Ext. P2 order is illegal. 3. True, as contended by the learned counsel for the petitioner, dealing with the provision contained in Rule 18 of the **WPC 8527/08** **:2 :** Railway Claims Tribunal (Procedure) Rules, 1989, it was held by the Division Bench that the rule prescribes the time limit of 30 days for filing an application to set aside an order dismissing the application for default and that there is no specific exclusion or prohibition in the rule against extending the time. On this basis, taking into account the provision of Section 29(2) of the Limitation Act, Section 5 of the Act was held to be applicable and it was held that the Railway Claims Tribunal had the power to condone delay. 4. On the other hand, the learned Govt. Pleader contended that as per Rule 8 of the State Transport Appellate Tribunal Rules 1988, the time limit for preferring appeal or revision shall be as prescribed in the Motor Vehicles Act,1988 or the Kerala Motor Vehicles Rules, 1989. It was contended that in view of Rule 141 of the Kerala Motor Vehicles Rules, 1989, an appeal under Section 89 of the Act shall be filed within 30 days of receipt of the order. It was also contended that there is no provision in the rule for condoning delay in filing an appeal. 5. He argued that as per Section 29 (2) of the Limitation Act where any special or local law prescribes for any suit, appeal or **WPC 8527/08** **:3 :** application a period of limitation different from the period prescribed by the Schedule to the Limitation Act, the provision 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 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. 6. According to the learned Govt. Pleader, since Rule 141 of the Kerala Motor Vehicles Rules prescribes a maximum period of 30 days for filing an appeal and in the absence of any provision for condoning delay thereof, the period of limitation is governed by the provisions of the Special Statute, namely, the Kerala Motor Vehicles Rules. It is also contended that since the Legislature intended that the appeal should be filed within 30 days, the provisions of Section 5 of the Limitation Act would not be applicable as it stands excluded by virtue of the provisions contained in Section 29(2) of the Limitation Act. 7. Having heard the counsel on both sides, I am inclined to **WPC 8527/08** **:4 :** agree with the learned Govt. Pleader. 8. A reading of Rule 141 of the Kerala Motor Vehicles Rules, 1989 shows that an appeal should be filed within 30 days of receipt of the order. There is no provision in the rule enabling the Tribunal to condone delay in filing an appeal. If that be the position, it is obvious that the Legislature intended that the appeal should be filed within 30 days and not thereafter. The period of limitation prescribed being different from what is prescribed under the Limitation Act and the Motor Vehicles Act and the Rules framed thereunder being a Special Law providing for limitation for filing appeal under Section 89 thereof, in my view, Section 29(2) of the Limitation Act applies and the provisions of Section 5 of the Limitation Act stand excluded. 9. In the context of the Toddy Workers' Welfare Fund Act, 1969, a Division Bench of this Court in Prasad v. State of Kerala {1999 (3) KLT S.N. Page 4} held as follows: “The period of limitation has been provided under this special statute. The special statute does not contain a provision making the provisions of S. 5 of the Limitation Act applicable. Therefore, the question of condonation of delay invoking that provision does not **WPC 8527/08** **:5 :** arise at all. In the instant case, the period has already been prescribed under the statute. There is no inherent right of appeal as contended by the appellants. In the absence of any provision for condonation of delay, this Court can hardly grant any relief under Art. 226 of the Constitution of India.” Similarly, in District Executive Officer v. Abel {2006(2) KLT 758}, referred to by the Tribunal in the impugned order, a Division Bench of this Court in the context of Section 8(5) of the Kerala Motor Transport Workers Welfare Fund Act, 1985, has held as follows: “Section 5 of the Limitation Act would apply only to proceedings in court and not to appeals or applications before the bodies governed by the statutes.” Recently, in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department {(2008) 7 SCC 169} in the context of Section 34 of the Arbitration and Conciliation Act, 1996, the Apex Court held as follows: “When any special statute prescribes certain period of limitation as well as provision for extension up to specified time-limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting sub- **WPC 8527/08** **:6 :** section (3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act.” From the above judgments, it is evident that where a special statute prescribes a period of limitation different from the provisions contained in the Limitation Act, such period of limitation will prevail and the provisions of Section 5 of the Limitation Act conferring power to condone delay to institute proceedings stands excluded. If that be the legal position, as settled by the Apex Court in the decision referred to above, Ext. P2 judgment rendered by the Tribunal is unassailable. Writ petition is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE jan/Rp