D.K.Seth, J. - (1.) The point raised : Mr. Dutta, learned Counsel for the respondent, has raised a very interesting point on a question of law as to the applicability of Section 5 of the Limitation Act in order to assail the maintainability of the application for condonation of delay in filing the reference. (1) He drew our attention to Section 35H of the Central Excise Act, 1944 and points out that this Section 35H was inserted by Finance Act, 1999 replacing the earlier provisions where the period of limitation was less than the period of limitation provided in the amended provision. According to him, the legislature had intended that this extension of period of limitation has to be construed to be the ultimate period of limitation without any application of Section 5 of the Limitation Act. According to him, when the legislature omitted to provide any power to condone the delay, in that event the provision is to be construed to have impliedly excluded the application of the Limitation Act, as contemplated in Section 29(2) of the Limitation Act. (2) He had also pointed out that the jurisdiction conferred on the High Court under Section 35H is an advisory jurisdiction which is neither appellate nor original. Therefore, High Court does not exercise its jurisdiction as a civil court while dealing with reference under Section 35H. If the High Court is not a civil court, in that event, the provisions of the Limitation Act would not apply unless it is specifically made applicable to it. He had further contended that form the scheme of the provisions incorporated through amendments, as it stands today, does not empower the Court to condone the delay in the absence of conferment of specific power in this regard on the High Court under Section 35H which is a special jurisdiction without the trappings of a Civil Court. Mr. Dutta had relied on various decisions in support of his contention to which we shall be referring to at appropriate stage.
(2.) Mr. Banerjee, learned Counsel, on the other hand, appearing on behalf of the appellant, points out that even though the High Court might exercise advisory jurisdiction under Section 35H but still then it is the High Court which exercise such special jurisdiction. The legislature had chosen a forum. Unless expressly provided in the legislation, it cannot take away the jurisdiction of the High Court, which exists in it. Since in a reference jurisdiction, the High Court has a special kind of jurisdiction of advisory one, it cannot assume the jurisdiction of a civil court and it was so held in various decisions, as rightly contended by Mr. Dutta. But still then its characteristics as a Court cannot be changed by a statutory enactment unless this particular power to condone the delay, which a Court can exercise is taken away by express provision in terms of Section 29(2) of the Limitation Act. (1) He also compares Section 35G, the provisions of appeal, where the Court by reason of Sub-section (9) thereof is a High Court within the meaning of the Code of Civil Procedure (CPC) so far as it relates to appeals. Section 35H following Section 35G had adopted the identical period of limitation but did not expressly or impliedly excluded the jurisdiction of the High Court in respect of Sections 4 to 24 of the Limitation Act. If it had a different intention, in that event, it would have provided such provision which has since been provided in other enactments where the period of limitation is limited for being condoned on account of delay to a particular extent and not thereafter. The application of Section 29(2) cannot be excluded unless express provision is provided or unless the intention of the legislature is available by implication. (2) Mr. Banerjee has also relied on various decisions in support of his contention and distinguished the decisions cited by Mr. Dutta. He has also adopted the submission of Mr. Samir Chakraborty, learned Counsel, though appearing for the respondent, has in his usual fairness, cited those decisions on which Mr. Banerjee has relied upon. We shall deal with those decisions at appropriate stage.
(3.) Mr. Chakraborty, learned Counsel appearing for the respondents in the other appeal, in his usual fairness has attempted to place the correct proposition of law without mincing words and had supported Mr. Banerjee that the High Court has power to condone the delay. He has relied on some decisions to which we shall be referring to at appropriate stage.;