A.S. Oka, J.
1. In both the petitions on 3rd July, 2003 notice for final disposal was issued. Accordingly both the petitions were extensively heard on 13th February, 2004 and the same were adjourned till today for Judgment.
2. The facts of the case involved in both the petitions are more or less identical and therefore, both the petitions can be conveniently disposed of by a common Judgment and Order. Since the facts in both the cases are identical, for the sake of convenience, reference has been made to the facts of the case in Writ Petition No. 1971 of 2003.
3. The petitioner is a tenant of the respondent No. 2 in respect of a shop premises at Karanja. The respondent No. 2 filed an application against the petitioner before the Rent Controller, Mangrulpir seeking permission to terminate the tenancy of the petitioner on the grounds set out in the said Application. By Judgment and Order dated 15th July, 2002 the said Application was rejected. It is the case of the petitioner that respondent No. 2 did not prefer Appeal against the said Order within the limitation prescribed by Clause 21 of the C.P. and Berar (Letting of Premises) and Rent Control Order, 1949 (hereinafter referred to as 'the Rent Control Order'). Therefore, the respondent No. 2 made an Application for condonation of delay in preferring appeal before the Additional Collector, Washim. By Order dated 4th April, 2003, the delay in preferring Appeal was condoned by the learned Additional Collector. The said Order has been impugned by the petitioner in the present petition.
4. The learned counsel for the petitioner contended that the impugned order is a non-speaking Order and no reasons have been assigned by the learned Additional Collector for condoning the delay. The learned counsel for the petitioner referred to the Division Bench Judgment of this Court reported in 2000 (2) M.L.J. 720, Babasaheb Kedar Ginning Pressing Va Prakriya Sanstha Ltd. Saoner v. Additional Collector, Nagpur and Anr. by which it was held that the Appellate Authority exercising power under Clause 21 of the Rent Control Order was a Court and therefore, the Appellate Authority had power under Section 5 of the Limitation Act, 1963 (for short 'the said Act of 1963') to condone the delay in preferring the appeal. Relying upon the judgment of the Apex Court in the case reported in : AIR2003SC4591 , Prakash H. Jain v. Ms. Marie Fernandes, the learned counsel for the petitioner submitted that the law laid down by the Division Bench of this Court in the case of Babasaheb Kedar v. Additional Collector is no longer a good law. He submitted in the alternative that the law laid down by the Division Bench of this Court needs re-consideration and therefore, the matter is required to be referred to a larger Bench.
5. The learned counsel appearing for the respondent No. 2 contended that if the averments in the application for condonation of delay are considered as a matter of fact, there was no delay in preferring Appeal. He submitted that even assuming that there was a delay, the Appellate Authority had power to condone the said delay. He submitted that considering the clear case made out in the Application for condonation of delay, no fault can be found with the impugned order passed by the Appellate Authority even if detailed reasons were not recorded. He submitted that the order impugned does not require interference of this Court in a petition under Article 227 of the Constitution of India.
6. The contentions raised by the learned counsel for the petitioner that the Appellate Authority has no power to condone delay is required to be considered. The said issue has been decided by a Division Bench of this Court (Coram : G. D. Patil and S. K. Shah, JJ) in the case of Babasaheb Kedar v. Additional Collector. In paragraph No. 21 of the said Judgment, the Division Bench has held thus :
'Under these circumstances it is clear that the Reviewing or the Appellate Authority exercising powers under the G P. and Berar Rent Control Order, 1949 are exercising judicial functions and, therefore, they have all essential attributes of a Court and, therefore, they are Courts as held by the Apex Court in Mukri Gopalan's case. It is also clear that the C. P. and Berar Rent Control Order, 1949 though provides limitation for filing review or appeal against the order of the Rent Controller, it does not expressly exclude the application of the provisions of Sections 4 to 24 (both exclusive) of the Limitation Act. As such, the provisions of Sections 4 to 24 of the Limitation Act would automatically apply to the proceedings before the Reviewing or the Appellate Authority exercising powers under the C. P. and Berar Rent Control Order, 1949 and thus, they have jurisdiction under Section 5 of the Limitation Act to consider and decide the application for condonation of delay in filing review or appeal against the order of the Controller within the prescribed period. In this view of the matter, the decision in Dinesh's case cannot be held to be a good law.'
7. The learned counsel for the petitioner has placed reliance on the Judgment of the Apex Court in the case Prakash Jain v. Ms. Marie Fernandes (supra). The Apex Court has considered in the said Judgment the provision of Section 43 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as 'the said Act of 1999'). The Apex Court examined powers of competent authority appointed under the said Act of 1999 to condone the delay in making application for leave to defend. While dealing with the said power the Apex Court held that:
'The Competent Authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provision of law under which the Competent Authority itself has been created. Clause (a) of Sub-section (4) of Section 43 mandates that the tenant or licensee on whom the summons is duly served should contest the prayer for eviction by filing, within thirty days of service of summons on him, an affidavit stating the grounds on which he seeks to contest the application for eviction and obtain the leave of the Competent Authority to contest the application for eviction as provided therefor. The legislature further proceeds to also provide statutorily the consequences as well as laying down that in default of his appearance pursuant to the summons or obtaining such leave, by filing an application for the purpose within the stipulated period, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant or licensee, as the case may be, and the appellant shall be entitled to an order for eviction on the ground so stated by him in his application for eviction. It is only when leave has been sought for and obtained in the manner stipulated in the statute that an hearing is envisaged to be commenced and completed once again within the stipulated time. The net result of an application/affidavit with grounds of defence and leave to contest, not having been filed within the time as has been stipulated in the statute itself as a condition precedent for the Competent Authority to proceed further to enquire into the merits of the defence, the Competent Authority is obliged, under the constraining influence of the compulsion statutorily cast upon it, to pass orders of eviction in the manner envisaged in Clause (a) of Sub-section (4) of Section 43 of the Act. The order of the learned Single Judge of the High Court under challenge in this appeal is well merited and does not call for any interference in our hands.'
Therefore, the Apex Court considered the peculiar provisions of Sub-section (4) of Section 43 of the said Act of 1999 and considering the legislative intent of creating an authority for a definite purpose the Apex Court held that the Competent Authority does not have power to condone the delay in making application for seeking leave to defend. In paragraph No. 12 of the Judgment, the Apex Court held that the Competent Authority can by no means be said to be a Court for exercising powers under the said Act of 1963. It is very clear that the observations made by the Apex Court in the said Judgment are in the context of the powers of the Competent Authority created under the said Act of 1999. The Apex Court has earlier observed that the legislature has provided statutory consequences of default in appearance of the Opponent in Application under Section 43. In case, the Opponent does not apply within the period of 30 days for leave to defend the suit, the section itself provides that the Applicant-Landlord shall be entitled to an order of eviction.
8. It is also necessary to consider some other Judgments of the Apex Court. In the judgment reported in AIR 2000 SC 2023, P. Sarathy v. State Bank of India, the Apex Court considered the question whether the Deputy Commissioner of Labour (Appeals) exercising powers under the Tamil Nadu Shops and Establishment Act, 1947 was a Court for the purpose of applying the provisions of the said Act of 1963. The Apex Court held that the Deputy Commissioner of Labour (Appeals) has jurisdiction to adjudicate upon the orders by which services of the employees are terminated. Therefore, the Apex Court held that the Deputy Commissioner of Labour (Appeals) was Court and therefore, Section 14 of the said Act of 1963 was applicable to the proceedings before him. It is also necessary to refer to the Judgment of the Apex Court in the case reported in : 1976CriLJ179 , Mangu Ram v. Delhi Municipality where the Supreme Court considered the question of applicability of Section 5 of the said Act of 1963 to the application for special leave under Section 417(3) of the Code of Criminal Procedure, 1898. The Apex Court, after referring to Section 29(2) of the said Act of 1963, held that, it is only if the special or local law expressly excludes the applicability of Section 5 of the said Act of 1963, then it would stand displaced. The Apex Court in paragraph No. 7 of the Judgment held that, 'mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5.'
9. In another Judgment reported in , Competent Authority v. Vijay Gupta and Ors. the Apex Court had occasion to consider the provisions of Section 29(2) of the said Act of 1963. The Apex Court held that the provisions contained in Sections 4 to 24 (inclusive) of the said Act of 1963 shall apply unless they are expressly excluded by any special or local law. Another leading case of the Apex Court on this aspect is : AIR1995SC2272 , Mukri Gopalan v. C.P. Aboobacker. However, I am not referring to the said case in detail as the Division Bench of this Court in the case of Babasaheb Kedar v. Additional Collector has extensively relied upon the said Judgment.
10. Lastly, it will be necessary to refer to one more Judgment of the Hon'ble Supreme Court reported in : AIR2001SC4010 , Union of India v. Popular Construction Co. In the said Judgment while considering the proviso to Section 34 of the Arbitration and Conciliation Act, 1996 it was held that:
'Had the proviso to Section 34 merely provided for a period within which the Court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because 'mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5'.
The Apex Court further held :
'Apart from the language, 'express exclusion' may follow from the scheme and object of the special or local law.' Even in a case where the special law does not exclude the provisions of Section 4 to 24 of the Limitation Act by an express reference. It would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation.'
11. If the law laid down by the Apex Court in the aforesaid Judgments is summarised it appears that mere provision of period of limitation in howsoever peremptory language is not sufficient to displace the applicability of Section 5 of the said Act of 1963. It is also clear that unless applicability of Section 5 of the said Act of 1963 is expressly excluded, it cannot be said that Section 5 will not have any application. It is no doubt true as held by the Apex Court in the recent case of Union of India v. Popular Construction Co., express exclusion may follow from the scheme and objects of the special or local law. In case of Prakash Jain (supra) relied upon by the learned counsel for the petitioner, while considering the scheme of Section 43 of the Maharashtra Rent Control Act, 1999 and especially the consequences prescribed by the section itself for not making application for leave to defend within a period of 30 days, the Apex Court has taken view that applicability of Section 5 of the said Act of 1963 is excluded. However, on the basis of the view taken by the Apex Court after examining the scheme of Section 43 of the Act of 1999, one cannot jump to the conclusion that applicability of Section 5 of the said Act of 1963 is excluded insofar Clause 21 of the Rent Control Order is concerned. If the entire scheme of the Rent Control Order is examined there is nothing to show that the applicability of Section 5 of the said Act of 1963 is intended to be excluded. Infact, in Sub-clause (i) of Clause 21 a provision has been made for excluding time required for obtaining copy of the Order of the Rent Controller. In the case of Prakash Jain relied upon by the learned counsel for the petitioner, the Apex Court was considering the scheme and scope of a provision which is altogether of a different nature. In the present matter the question is as regards the Appeal under Clause 21 of the Rent Control Order. Considering the scheme of the Rent Control Order the Division Bench of this Court in the case reported in Babasaheb Kedar v. Additional Collector has come to the conclusion that applicability of Section 5 of the said Act of 1963 is not excluded in case of an appeal is preferred under Clause No. 21. I do not agree with the submissions of the learned counsel for the petitioner that the law laid down by the Division Bench of this Court is no longer a good law in the light of the case of Prakash Jain. Therefore, the said arguments advanced by the learned counsel for the petitioner is rejected.
12. Clause 21(1) of the Rent Control Order reads thus:
'21(1): Any person aggrieved by an order of the Controller may, within fifteen days from the date on which the order is communicated to him, present an appeal in writing to the Collector of the district:
Provided that in computing the period prescribed above, the time properly taken in obtaining a copy of the order complained of shall be excluded:'
The period of limitation of 15 days starts running from the date on which the order of the Rent Controller is communicated to the party. In application for condonation of delay it is stated by the respondent No. 2 that though the order was passed on 15th July, 2002 by the Rent Controller it was communicated to the Counsel for the respondent No. 2 on 3rd August, 2002 and on 6th August, 2002 an Application was made for obtaining certified copy. It is stated in the Application for condonation of delay that 13th August, 2002 was the date fixed for delivery of certified copy. However, certified copy was not ready on that date. The respondent No. 2 further stated that on one or two occasions inquiry was made as to whether the certified copy was ready. It is stated in the Application that after an intimation was received that certified copy was ready, on 18th November, 2002 it was collected and Appeal was filed on 27th November, 2002. There is a reply filed to the said application by the petitioner. In the said reply the petitioner has not specifically denied the averments made by the respondent No. 2 that 13th August, 2002 was the date given to the respondent No. 2 for collecting certified copy. However, it is contended that the certified copy of the order was ready on 14th October, 2002 and the Advocate for the respondent No. 2 ought to have inquired on behalf of the respondent No. 2 about the copy and ought to have collected the same immediately.
13. The learned counsel for the respondent No. 2 contended that the limitation started running on 3rd August, 2002 i.e. from the date of receipt of communication of the order and application for certified copy was made on 6th August, 2002. He submitted that as no date was intimated after 13th August, 2002 for collecting certified copy, further period of limitation will start running from 18th November, 2002 when certified copy was collected by him. He submitted that considering the fact that on 27th November, 2002 the appeal was preferred and as the time required for obtaining certified copy from 6th August, 2002 to 18th November, 2002 is to be excluded, there was infact no delay in preferring the appeal.
14. There is some substance in the submissions made by the learned counsel for respondent No. 2. However, it cannot be over-looked that the respondent No. 2 himself applied under Section 5 of the Limitation Act for condonation of delay. There is no finding recorded by the Appellate Authority whether the respondent No. 2 was aware that the certified copy was ready on 14th October, 2002. Therefore, I am not considering the said submission made by the learned counsel for the respondent No. 2 as in any event, sufficient cause for condonation of delay was made out on the face of the averments made in the Application for condonation of delay and the reply filed by the present petitioner. It is not the case of the petitioner that a specific intimation was sent to the respondent No.2 that the certified copy was ready on 14th October, 2002. The petitioner has contended in the reply that it was for the Advocate of the respondent No. 2 to make inquiry for ascertaining whether the certified copy was ready. Even assuming that such responsibility was of the Advocate and the Advocate has not done his duty, the respondent No. 2 cannot be blamed. Therefore, even assuming that the certified copy was ready on 14th October, 2002 the question was for condonation of few days' delay. The delay has been condoned by the Appellate Authority.
15. It is true that detailed reasons are not given by the Appellate Authority for condoning the delay. However, perusal of the record shows that sufficient cause was made out by the respondent No. 2 and therefore, even if the reasons are not assigned there is no failure of justice warranting interference in extraordinary jurisdiction under Article 227 of the Constitution of India. Substantial justice has been done by condoning delay and therefore, no interference is required.
16. As stated above, the facts of the case in Writ Petition No. 407 of 2004 are identical and therefore, there is no merit in the said petition. Hence, both the writ petitions are rejected. No order as to costs.