Letters Patent Appeal No.94 of 2007,Writ Petition No.4962 of 2006

8th August, 2007

Petitioner Counsel: Shri. P. C. MADKHOLKAR
Respondent Counsel: Shri. B. H. DANGRE

Cases Cited:
Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker, AIR 1995 SC 2272 [Para 7,11]
Jaswant Sugar Mills Ltd. Meerut Vs. Lakshmi Chand, AIR 1963 SC 677 [Para 8]
State of Andhra Pradesh Vs. S. M. K. Parasurama Gurukul, (1973)2 SCC 232 [Para 10]
Shri. Radeshyam Khare Vs. The State of Madhya Pradesh, AIR 1959 SC 107 [Para 10]
Commissioner of Income Tax Vs. Velingkar Brothers, 2007(3) Mh.L.J. 241 [Para 11]
Commissioner of Income Tax Vs. Anandilal Poddar and Sons Ltd., (2005)279 I.T.R. 104 (Cal) [Para 11]
Officer on Special Duty (Land Acquisition) Vs. Shah Manilal Chandulal, (1996)9 SCC 414 [Para 13]
Prakash H. Jain Vs. Ms. Marie Fernandes, 2004(5) ALL MR 1 (S.C.)=AIR 2003 SC 4591 [Para 14]
Sunda Associates Vs. Ajit Kisanlal Agarwal, 2005(4) ALL MR 69=2005(3) Mh.L.J. 362 [Para 14]
The Commissioner of Sales Tax, Uttar Pradesh, Lucknow Vs. M/s. Parson Tools and Plants, Kanpur, AIR 1975 SC 1039 [Para 15]
CST Vs. Madan Lal, (1976)4 SCC 464 [Para 15]
Jaswant Sugar Mills Ltd., Meerut Vs. Lakshmi Chand, AIR 1963 SC 677 [Para 16]
State of Maharashtra Vs. Basantilal, (2003)10 SCC 620 [Para 17]
Navinon Limited Vs. Union of India, 2005(1) Bom.C.R. 58 [Para 28]

JUDGMENT

R. C. CHAVAN, J.:- Rule. Rule is made returnable forthwith and is heard by consent of parties.

2. This appeal raises the following short question :

"Whether the Collector deciding an appeal under section 137 of the Bombay Prohibition Act, 1949 can condone under Section 5 of the Limitation Act, 1963 the delay in preferring such an appeal ?"

3. Facts, which gave rise to the controversy, have been elaborately enumerated in the erudite judgment of the learned Single Judge, who dismissed appellant's Writ Petition No.4962 of 2006. The appellant was called upon to pay a sum of Rs.46,11,394.80 towards the arrears of excise duty by demand notice dated 23-6-2003. The appellant preferred appeal under Section 137 of the Bombay Prohibition Act on 10-6-2005 challenging the said demand notice. The period prescribed for filing an appeal under Section 137(1) of the Bombay Prohibition Act expired on 25-8-2003 and thus the appeal had been filed substantially after the prescribed period was over. The appellant sought condonation of delay in preferring the appeal. The Collector held that there was no provision authorizing him to condone delay and, therefore, rejected the application for condonation of delay and consequently disposed of the appeal. Aggrieved thereby, the appellant filed a writ petition before this Court, which was dismissed by the learned Single Judge by his judgment dated 21-12-2006.

4. It is the appellant's contention that a Collector entertaining an appeal under Section 137(1) of the Bombay Prohibition Act functions judicially and, therefore, while performing such judicial functions, could have recourse to the provisions of Section 5 of the Limitation Act in view of the provisions of Section 29(2) of the Limitation Act. The appellant contends that the Collector was obliged to decide the question of condonation of delay on merits. According to the appellant, there are several statutes, which provide for appeals to various authorities other than the Courts, where time-limits within which appeals can be preferred are prescribed, and if a rigid view regarding such time-limit is taken, without leaving the authority with any power to condone delay, even in a fit case, the parties would be left without remedy. According to the appellant, the learned Single Judge ought to have appreciated this aspect of the matter and should have held that the Collector had the power to condone delay while entertaining appeal under Section 137 of the Bombay Prohibition Act.

5. Upon notice, the respondents appeared through the learned AGP. We have heard both Shri. P. C. Madkholkar, learned Advocate for the appellant, and Smt. B. H. Dangre, learned AGP for respondents. Both the learned Advocates painstakingly took us through several decisions relevant for resolving the controversy, crafted their submissions and marshalled their arguments powerfully enough to underline the truism that advocacy is an art of reconciling the irreconcilable.

6. The contention of Shri. P. C. Madkholkar, learned Advocate for the appellant, that the party should not be made to lose the remedy for technical reasons, though attractive, does not imply that a party, who is not vigilant about his own right, must be shown indulgence in the matter of enforcement of remedies. It is not that the statutory appeal provided under Section 137 of the Bombay Prohibition Act is to be instantly filed after the demand notice is received. A period of sixty days has been given to enable the party to prefer appeal. This period is reasonable and would take care of the normal vicissitudes in life. Therefore, it is not that by prescribing a statutory limit or seeking to religiously enforce it, the State intends to deprive the citizens of remedies available. The question is whether the indulgence available to a litigant before a Civil Court, by invoking provisions of Section 5 of the Limitation Act, could be indiscriminately extended to parties before all authorities exercising statutory powers.

7. There is no dispute about the proposition that Section 29(2) of the Limitation Act prescribes that the provisions of Sections 4 to 24 of the Limitation Act would also apply to the proceedings under a special or local law, which prescribe a period of limitation in respect of any suit, appeal or application, different from the period prescribed under the Limitation Act, only with the substitution of such period, for the period prescribed in the Schedule to the Limitation Act for the corresponding proceeding. Likewise, there is no dispute about the proposition that for ousting the applicability of the Limitation Act, it is necessary to show that these provisions were expressly excluded by the special or local law, or excluded by necessary implication, as held by the Supreme Court in Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker, reported at AIR 1995 SC 2272. It is, therefore, not necessary to refer to the decisions which deal with the question of applicability of the provisions of the Limitation Act to proceedings under a special or local law. In fact the learned Single Judge in his judgment under appeal has categorically observed in para 7(G) that there was no such express or implied exclusion of the provisions of the Limitation Act under the Bombay Prohibition Act. The learned Judge held that if the Collector was held to be a 'Court', then the Limitation Act would apply and the Collector would have the powers under Sections 5 of the Limitation Act to condone delay.

8. The question of applicability of Section 5 of the Limitation Act would have to be decided with reference to the question as to whether the authority concerned could be called a 'Court'. For this purpose, the earliest decision on this point, to which the learned Advocates made a reference, is one rendered by a Five-Judge Bench of the Supreme Court in Jaswant Sugar Mills Ltd. Meerut Vs. Lakshmi Chand and others, reported at AIR 1963 SC 677. The question before the Court was whether appeal may be entertained under Article 136 of the Constitution of India in a proceeding arising out of directions of a Conciliation Officer under Clause 29 of Order by Governor of U.P. The party aggrieved had taken an appeal before the Labour Appellate Tribunal under the Industrial Disputes Appellate Tribunal Act, 1950 challenging the directions of the Conciliation Officer. The Labour Appellate Tribunal rejected the appeal as untenable, holding that the Conciliation Officer was not an authority under the Act. The Company preferred an appeal by special leave before the Supreme Court. The Court considered the nature of certiorari jurisdiction and examined as to whether the Conciliation Officer could be held to exercise judicial power. The Court considered the provisions of Article 136 of the Constitution and, in particular, the meaning of the expression "judgment, decree, determination, sentence, or order in any cause or matter passed or made by any Court or Tribunal in the territory of India". The Court then considered the nature of power exercised by the Conciliation Officer under Clause 29 of the U.P. Order, and in that context observed as under :

"(11) Question whether a decision is judicial or is purely administrative, often arises when jurisdiction of the superior courts to issue writs of certiorari is invoked. Often the line of distinction between decisions judicial and administrative is thin; but the principles for ascertaining the true character of the decisions are well-settled. A judicial decision is not always the act of a judge or a tribunal invested with power to determine questions of law or fact; it must however be the act of a body or authority invested by law with authority to determine questions or disputes affecting the rights of citizens and under a duty to act judicially. A judicial decision always postulates the existence of a duty laid upon the authority to act judicially. Administrative authorities are often invested with authority or power to determine questions, which affect the rights of citizens. The authority may have to invite objections to the course of action proposed by him, he may be under a duty to hear the objectors, and his decision may seriously affect the rights of citizens but unless in arriving at his decision he is required to act judicially, his decision will be executive or administrative. Legal authority to determine questions affecting the rights of citizens, does not make the determination judicial; it is the duty to act judicially which invests it with that character. What distinguishes an act judicial from administrative is therefore the duty imposed upon the authority to act judicially. Mukherjea J. in the Province of Bombay Vs. K. S. Advani, 1950 SCR 621 : (AIR 1950 SC 222) observed at p.670 (of SCR) : (at pp.239-240 of AIR)

"there cannot indeed be a judicial act, which does not create or impose obligations; but an act, x x x is not necessarily judicial because it affects the rights of subjects. Every judicial act presupposes the application of judicial process. There is well marked distinction between forming a personal or private opinion about a matter, and determining it judicially. In the performance of an executive act, the authority has certainly to apply his mind to the materials before him; but the opinion he forms is a purely subjective matter which depends entirely upon his state of mind. It is of course necessary that he must act in good faith, and if it is established that he was not influenced by any extraneous consideration, there is nothing further to be said about it. In a judicial proceedings, on the other hand, the process or method of application is different. "The judicial process involves the application of a body of rules or principles by the technique of a particular psychological method", vide Robson's Justice and Administrative Law p.33. It involves a proposal and an opposition, and arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice, vide R. Vs. London County Council, (1931)2 KB 215 at p.233. It is not necessary that the strict rules of evidence should be followed; the procedure for investigation of facts or for reception of evidence may vary according to the requirements of a particular case. There need not be any hard and fast rule on such matters, but the decision which the authority arrives at, must not be his 'subjective', 'personal' or 'private' opinion. It must be something which conforms to an objective standard or criterion laid down or recognised by law, and the soundness or otherwise of the determination must be capable of being tested by the same external standard. This is the essence of a judicial function which differentiates it from an administrative function; and whether an authority is required to exercise one kind of function or the other depends entirely upon the provisions of the particular enactment. x x x x x Generally speaking where the language of a statute indicates with sufficient clearness that the personal satisfaction of the authority on certain matters about which he has to form an opinion founds his jurisdiction to do certain acts or make certain orders, the function should be regarded as an executive function."

9. In para 15 of the judgment, the Court added a caveat that every decision or an order by an authority under a duty to act judicially would not make such authority 'court' or tribunal'. It then observed that a tribunal, adjudication whereof is subject to appeal, must, beside being under a duty to act judicially, be a body invested with the judicial power of the State. The Court held that the Conciliation Officer was not invested with power to adjudicate and that, therefore, his decision was not subject to an appeal before the Labour Appellate Tribunal and consequently the Court dismissed the appeals by special leave.

10. In State of Andhra Pradesh Vs. S. M. K. Parasurama Gurukul, reported at (1973)2 SCC 232, the Supreme Court was considering whether the authority appointing trustees under a relevant Andhra Pradesh enactment had to act judicially or quasi judicially. The appointing authority had passed an order which could be described as a non-speaking order. The High Court of Andhra Pradesh quashed the said order as non-speaking order passed by an authority held to be acting quasi judicially. When the matter was taken to the Supreme Court, the Court considered the nature of power exercised by the authority appointing trustees and held in para 3 as under :

"The test for determining whether a decision is an administrative one or quasi-judicial has been clearly specified in a number of decisions of this Court. Essentially, they are three in number :

(1) There must be a lis between the two parties;

(2) the opinion should be formed on the objective satisfaction and should not depend upon the subjective satisfaction of the tribunal; and

(3) there must be a duty to act judicially."

The Court then quoted from an earlier decision in Shri. Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, reported at AIR 1959 SC 107, as under :

"To get to the bottom of the distinction, we must go a little deeper into the content of the expression 'duty to act judicially'. As has been repeated so often, the question may arise in widely differing circumstances and a precise, clear-cut or exhaustive definition of the expression is not possible. But in decisions dealing with the questions several tests have been laid down; for example-

(i) whether there is a lis inter partes;

(ii) whether there is a claim (or proposition) and an opposition;

(iii) whether the decision is to be founded on the taking of evidence or on taking of evidence or on affidavits;

(iv) whether the decision is actuated in whole or in part by questions of policy or expediency, and if so, whether in arriving at the decision, the statutory body has to consider proposals and objections and evidence; and

(v) whether in arriving at its decision, the statutory body has only to consider policy and expediency and at no stage has before it any form of lis."

The Court then concluded that the authority, exercising power of appointing of trustees, was not deciding any lis and, therefore, set aside the judgment of the Andhra Pradesh High Court, which required such authority to pass a speaking order.

11. The learned Advocate for the appellant submitted that a Full Bench of this Court in Commissioner of Income Tax Vs. Velingkar Brothers, reported at 2007(3) Mh.L.J. 241, had held that the provisions of Section 5 of the Limitation Act would apply to appeals under Section 260-A of the Income Tax Act. Section 260-A of the Income Tax Act provides for an appeal to the High Court. Such appeal is required to be filed within 120 days. It was delayed by 11 days. The revenue filed an application for condonation of delay under Section 5 of the Limitation Act. The assessee objected. Upon reference by a Division Bench, the Full Bench held that delay could be condoned and that the provisions of Section 5 of the Limitation Act would apply to appeals under Section 260-A of the Income Tax Act. The Full Bench had relied on the judgment of the Supreme Court in Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker, reported at AIR 1995 SC 2272, and a judgment of High Court of Calcutta in Commissioner of Income Tax Vs. Anandilal Poddar and Sons Ltd., reported at (2005) 279 I.T.R. 104 (Cal).

12. As far as this judgment of Full Bench of this Court is concerned, the learned AGP submitted that it presented no difficulty, since by no stretch of imagination could the High Court, entertaining an appeal under a statute could be held to be exercising powers other than the judicial powers of the State. Therefore, as far as the proceedings in the High Court are concerned, the provisions of Section 5 of the Limitation Act would obviously apply.

13. It would be necessary to examine whether the Collector exercising power under Section 137 of the Bombay Prohibition Act is exercising judicial power of the State or is merely under a duty to act judiciously with reference to the law laid down in the decisions referred to above. The learned AGP had brought to our notice the judgment of the Supreme Court in Officer on Special Duty (Land Acquisition) and another Vs. Shah Manilal Chandulal and others, reported at (1996)9 SCC 414, where the question was whether the Officer on Special Duty (Land Acquisition) could have condoned delay by invoking powers under Section 5 of the Limitation Act for filing applications for making reference under Section 18 of the Act. The awards in that case had been made on 28-2-1989. The application for reference ought to have been made within six weeks. The respondents, however, applied on 10-6-1989 and such sought condonation of delay. The Officer on Special Duty rejected the application for reference as time-barred. The applicants approached the High Court, which held that delay could have been condoned under Section 5 of the Limitation Act and allowed the writ petition. The question before the Supreme Court was whether the High Court was right in treating a Collector under the Land Acquisition Act to be a 'Court' subordinate to the High Court, to enable him to exercise powers under Section 5 of the Limitation Act, and upon an examination of the scheme of the Act and nature of powers exercised by the Collector, held that the Collector acts as a statutory authority and was not a 'Court'.

14. Similar question about the power of competent authority under the Maharashtra Rent Control Act to condone delay in filing application for leave to defend had arisen in Prakash H. Jain Vs. Ms. Marie Fernandes, reported at AIR 2003 SC 4591 : [2004(5) ALL MR 1 (S.C.)], where the Court held that the competent authority is not a Court, and at best is a statutory authority, which could not invoke powers under Section 5 of the Limitation Act for condonation of delay. This decision has been followed up by this Court in Sunda Associates Vs. Ajit Kisanlal Agarwal, reported at 2005(3) Mh.L.J. 362 : [2005(4) ALL MR 69].

15. The learned AGP submitted that in the matters of assessment of tax and its demand, an officer of the Revenue Department of the State howsoever high is not an adjudicator, but a mere examiner of the correctness of demand made. The learned AGP relied on a judgment of the Supreme Court in The Commissioner of Sales Tax, Uttar Pradesh, Lucknow Vs. M/s. Parson Tools and Plants, Kanpur, reported at AIR 1975 SC 1039. The learned Single Judge had also considered this judgment in para 5(A) of his judgment. The Supreme Court had held that the Taxing Authorities are instrumentalities of the State and not a part of the legislature or judiciary. Their functions are assessment and collection of taxes and in the process of assessing taxes, they follow a pattern of action which is considered judicial. They are not thereby converted into Courts of Civil Judicature. This judgment was considered by the Apex Court in CST Vs. Madan Lal, reported at (1976)4 SCC 464. The proceedings being questioned were in the High Court before the Judge (Revision) Sales Tax, who, undoubtedly, exercised judicial power of the State. All the same, the judgment in M/s. Parson Tools clearly shows that the authorities exercising statutory powers under relevant tax law are not Courts.

16. Basically the question whether an authority is exercising judicial power or not would have to be resolved with reference to the time-tested parameters handed down by the Supreme Court in Jaswant Sugar Mills Ltd. Meerut Vs. Lakshmi Chand and others, reported at AIR 1963 SC 677. In para 13 of the judgment, the Court observed that the following criteria must be satisfied :

"(13) To make a decision or an act judicial, the following criteria must be satisfied :

1) It is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rules;

2) it declares rights or imposes upon parties obligations affecting their civil rights; and

3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact."

17. Shri. Madkholkar, the learned Advocate for the appellant, submitted that the proceedings before the Collector under Section 137 of the Bombay Prohibition Act satisfy these criteria. He pointed out that the Collector is required to determine the correctness of the demand made by application of objective standards in the light of pre-existing rules. His decision imposes upon the parties obligations affecting their civil rights and the investigation is subject to procedural attributes, like presenting a case, ascertainment of facts, presentation of arguments and the decision resulting in the disposal of the matter on findings based upon questions of law and fact. The learned Advocate for the appellant submitted that the further requirement in the judgment in Jaswant Sugar Mills Ltd. Meerut Vs. Lakshmi Chand and others, referred to above, namely, that the Tribunal must, beside being under a duty to act judiciously, be a body invested with the judicial power of the State, need no longer vex us in view of the pronouncement of the Supreme Court in respect of the nature of power exercised by a Minister under Section 34 of the Bombay Prohibition Act, as held in State of Maharashtra and others Vs. Basantilal and another, reported at (2003)10 SCC 620.

18. In Basantilal's case, this Court had held that the order passed in revision by a Minister under Section 34 of the Bombay Prohibition Act was an executive act and, therefore, required authentication under Article 166 of the Constitution. The Supreme Court held that a quasi judicial order made by an executive authority sitting as an appellate or revisional authority under a statute could not be construed as an executive order and, therefore, did not require authentication. Shri. P. C. Madkholkar, learned Advocate for the appellant, submitted that if a Minister exercising jurisdiction under Section 34 of the Bombay Prohibition Act is held not to be exercising executive power, it would imply that such Minister was exercising judicial power of the State. Consequently, by analogy, a Collector entertaining an appeal under Section 137 of the Bombay Prohibition Act must be held to be exercising judicial power of the State and not executive power.

19. While deciding Letters Patent Appeal No.93 of 2007 arising out of another judgment of the learned Single Judge in Writ Petition No.5091 of 2006, where the provisions of Section 138 of the Bombay Prohibition Act were in issue, allowing the appeal, this Court had held that such order does not require authentication under Article 166 of the Constitution, since the Minister was exercising powers as a quasi judicial authority and the nature of order passed by the Minister was quasi judicial.

20. The contention of Shri. Madkholkar, learned Advocate for the appellant, that the judgment of the Apex Court in State of Maharashtra and others Vs. Basantilal and another, referred to above, squarely settles the issue, though attractive, has to be rejected because the question which the Court was considering was only about requirement of authentication under Article 166 of the Constitution for an order passed by the Minister in exercise of quasi judicial power. It does not touch the question about the nature of power exercised, and does not pronounce that the nature of power exercised is the judicial power of the State. As the discussion to follow would unfold if an authority is held to be exercising a non-executive power, it does not follow that the power has to be judicial power of the State. Basically, when the Courts observe that an authority has been exercising quasi judicial power, Courts do not go to the source of the power, but the manner in which it is exercised. An authority may, even while conducting executive functions, be required to act judicially by following principles of natural justice, giving a hearing or even examining facts. This does not convert the authority into a Court or an authority invested with judicial power of the State.

21. Meaning of prefix 'quasi' as given in Chambers Combined Dictionary Thesaurus is 'to some extent', 'virtually, 'in many respects similar to', 'seeming or seemingly, but not actually so', etc. In the Chambers Dictionary, prefix 'quasi' is shown to mean 'in a certain manner', 'sense or degree', 'in appearance only', etc. In the Oxford English Dictionary also, 'quasi' has been shown to mean 'as it were', 'almost', and 'virtually'.

In Advanced Law Lexicon by P. Ramanatha Aiyar, meaning of 'quasi' has been given as under :

"As if; as it were analogus to; seemingly not really. This term is used in legal phraseology to indicate that one subject resembles another, with which it is compared, in certain characteristics, but that there are also intrinsic differences between them. The work "quasi" marks the resemblance, and supposes a little difference, between two objects. Seemingly but not actually; in some sense; resembling; nearly."

It may thus be seen that 'quasi judicial' clearly means not judicial, but only similar to judicial or seemingly judicial. Therefore, merely because an authority is performing quasi judicial functions, it does not mean that the authority exercised judicial power of the State, though it may have stepped out from the domain of executive power of the State.

22. It may be recalled that in Jaswant Sugar Mills Ltd. Meerut Vs. Lakshmi Chand and others, referred to above, a Five-Judge Bench of the Apex Court had categorically ruled that apart from the question whether the exercise of power was similar to process of adjudication, it would have to be additionally found out whether the authority was invested with judicial power of the State. Since this question was not raised in State of Maharashtra and others Vs. Basantilal and another, referred to above, the ratio in Basantilal's case is only as regards requirement of authentication under Article 166 of the Constitution of India.

23. Judicial precedents have a limitation inasmuch as they are handed down in the context of fact situation projected in the cases being decided. They cannot take into account all other aspects of the matter, which may not have been unfolded before the Court. In the present days, with superior Courts working under very heavy pressure of backlog, it would be difficult to fictionally attribute to Courts that the Courts had considered all aspects of the matter. Therefore, it would be necessary to restrict judicial precedents to the fact situation in which it was rendered and avoid extensions by analogy, deductive or inductive logic. In State of Maharashtra and others Vs. Basantilal and another, the only question that had come up before the Court was necessity of authentication and that was the only question which the Court decided. It had not gone in to the broader issue as to what was the nature of power which the Minister was exercising. A word about the requirement of authentication under Article 166 of the Constitution may not be entirely out of place. Since the executive power of the State vests in the Governor under Article 154 of the Constitution, all decisions which are taken by the Government under the rules of business have to be formulated in the form of orders issued "By order and in the name of the Governor of the State." This is a fictional formality. Clause 2 of Article 166 of the Constitution of India, reads as under :

"(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor."

The instruments, which are authenticated in the above manner cannot be questioned on the ground that the order or instrument was not made by the Governor (though in fact it is not so made). The converse is, however, not true, namely that an order made by Minister, but not carrying the tag of authentication, is liable to be questioned on the ground that it was not made by the Governor, because it did not carry such a tag. It is not intended to suggest that issuance of the orders with the appendage "By order and in the name of the Governor" is an empty formality or a mere vestige of colonial past. This appendage has its own significance. However, while reading a judicial precedent, it cannot be overlooked that the observations came in the context of the formal authentication of an order made by the Government, since, as a fact, decisions are taken by the Council of Ministers and Secretaries under the rules of business, and the Governor has little or no voice or choice in the matter of notification of such decisions, which are routinely notified even before the Governor would come to know of it. Therefore, the observations of the Supreme Court on a question of form cannot influence the decision on the question of substance.

24. Even if the power is not strictly executive power of the State, it is in the penumbral area, but does not decidedly enter the domain of the judicial power of the State, since such an entry would do violence to separation of powers. In view of this, the decision in State of Maharashtra and others Vs. Basantilal and another, on which the learned Advocate for the appellant heavily relies, cannot lead to an inference that the Collector hearing an appeal under Section 137 of the Constitution was exercising judicial power of the State. Only after the authorities in the executive have applied their mind to the departmental decisions, albeit in a quasi judicial manner, would the dispute land in the domain of exercise of judicial power of the State, either before independent Tribunals like the Administrative Tribunals or the Tax Tribunals, which have come to take the place of the Courts, or before the Courts themselves.

25. A decision on the question of authentication of an executive order under Article 166 of the Constitution of India, which is more a matter of form, cannot be used to drive in the Trojan horse of the Limitation Act into departmental appeals and revisions. Entry of the provisions of the Limitation Act into these departmental proceedings will wreck havoc and the time schedule for completing administrative actions will go hayware. As already pointed out wherever time-limit is prescribed for initiation of such actions, sufficient care has been taken to provide for vicissitudes in life.

26. The question is not one about the nature of proceedings held before the authorities under the Bombay Prohibition Act. It is about the nature of power exercised. Hearing of appeals under Section 137 or revision under Section 138 of the Bombay Prohibition Act may be quasi judicial acts, but still they retain the character of acts by the executive authorities. An authority would be a 'court' if it were holding scales between entities other than itself. Since no person could be a judge in his own cause, a Collector, who has the duty to collect revenue, does not become a court merely because he re-appraises or re-examines the demands raised by his subordinates. Exercise of powers by the authorities in the legislative or executive wing of the State may follow procedure similar to exercise of adjudicatory power by the judicial organs of the State, when these authorities are by statute required to act judiciously. They may be required to receive submissions, ascertain the points in controversy, receive evidence and adjudicate upon rights of persons before them, but still such exercise would not come within the purview of exercise of judicial powers of the State. The acts concerned may be in the zone of penumbra where both judicial and executive functions may meet, but would not qualify for being classified as exercise of judicial power of the State. It may also be mentioned that the learned Single Judge in para 5(L) of his judgment has taken a review of the provisions of the Bombay Prohibition Act. He pointed out that the Collector does not have the power to summon or examine any witness in exercise of appellate or revisional authority and that his powers are basically in the nature of administrative supervision.

27. Appeals under the Civil Services Rules or proceedings before the Legislatures for breach of privilege or disqualification of Members are instances of proceedings, which are decidedly judicial, but still do not amount to exercise of judicial power of the State, since such power is not vested in the authorities concerned.

28. In Navinon Limited Vs. Union of India and another, reported at 2005(1) Bom.C.R. 58, a Division Bench of this Court was considering a similar question about applicability of Section 5 of the Limitation Act to appeals before the Commissioner under Section 35 of the Central Excise Act, 1944. Though the question could have been, and in fact was, disposed of holding that recourse to Section 5 of the Limitation Act was excluded because the appellate authority had the power to extend limitation of sixty days by another thirty days, the Court also considered whether the appellate authority could qualify to be a 'court' for the purpose of Section 29(2) of the Limitation Act. In fact, the issue principally discussed in the judgment was whether the appellate authority was 'court' or a mere executive authority. After taking a review of several judgments, the Division Bench held in paras 15 and 16 as under :

"15. The legal position that emerges from the various pronouncements referred to above is that the provisions of Limitation Act, 1963 apply only to 'courts'. Such courts may not be Civil Courts. These courts may not necessarily be constituted under the Code of Civil Procedure or the Code of Criminal Procedure. The forum that functions as a Court or has trappings of the Court would be a Court for the purposes of applicability of the Limitation Act, 1963. The jurisdiction to entertain proceedings appeals or revisions under the special laws is sometimes given to the ordinary courts, and sometimes given to separate Tribunals constituted under the special law. Such Tribunals constituted under the special law which function as courts or having trappings of courts may be treated as courts for the purposes of the Limitation Act, 1963 but not all bodies or authorities hearing appeals or revisions under special law, having no trappings of the Court or which do not function as a Court."

"16. The Commissioner of Central Excise (Appeals) empowered to hear appeals under section 35 of Central Excise Act, in our considered view, cannot be treated to be forum functioning as a Court nor the said authority can be said to have trappings of the Court. The Commissioner of Excise (Appeals), though, is a Appellate Authority under section 35 but his decisions do not satisfy the essential tests of judicial pronouncement. He cannot be said to possess the attributes of a Court. In the entire Central Excise Act, there is no provision which even makes the Commissioner of Central Excise (Appeals) a Court for limited or specific purpose. The Appellate Authority under section 35 of the Central Excise Act is only executive authority; true it is while hearing the appeals contemplated under section 35, the Commissioner of Central Excise (Appeals), acts quasi judicially. But that would not make Commissioner, Central Excise a Court or an authority functioning as a Court or having the trappings of a Court. In view of the admitted position that the appeal was preferred by the present petitioner under section 35 beyond 30 days of the expiry of statutory period of 60 days, the Commissioner of Central Excise (Appeals) cannot be said to have committed any error in not entertaining the appeals as barred by limitation prescribed under section 35 of the Central Excise Act."

It may be seen that the Division Bench deciding Navinon Limited Vs. Union of India and another was considering the question of condonation of delay in filing appeal against a revenue demand - rejection of petitioner's claim of rebate. Situation in the present case is similar. Therefore, a different view may not be warranted.

29. In view of this, we find that the learned Single Judge has rightly held that the Collector hearing the appeal under Section 137 of the Bombay Prohibition Act was not a Court so as to be able to invoke powers for condonation of delay under Section 5 of the Limitation Act.

30. The Letters Patent Appeal has no merit and it is, therefore, dismissed. Rule stands discharged.

Appeal dismissed.