C. P. GOVINDARAJAN v. STATE OF KARNATAKA — 1983 DIGILAW 315 (KAR)

MAUMATH, C. J. ( 1 ) THESE two Writ Petitions have been referred to the Division Bench on the ground that important questions of law of general importance have arisen for consideration in these cases. As the facts and points of law arising in these two cases are similar, they were heard together and are disposed of by this common order. ( 2 ) THE relevant facts of these cases may briefly be stated as follows : sri Govindarajan, the petitioner in W. P. No. 26405 of 1982 entered as a Class II Probationer after being selected by the Public Service Commission for the said post in the year 1959. In due course he rose to the position of Joint Director of land Records. In his Service Register, his date of birth is entered as 18-9-1928. According to that date he had to retire from service on 18-9-1983. On the 22nd of May 1979 he made an application to the State government under S. 5 of the Karnataka State Servants (Determination of Age) Act 1974 (hereinafter referred to as the Act) praying for alteration of his date of birth entered in the Service Register from 18-9-1928 to 18-9-1931. It is his case that it is only a few days before the date of his application that he came to know that his correct date of birth is 18-9-1931. The State government appointed the Solicitor and Ex-officio Deputy Secretary, department of Law and Parliamentary Affairs, as the Enquiry Officer for making an enquiry into the application, as required by sub-sec. (3) of S. 5 of the Act. After hearing the petitioner and examining the relevant provisions of the Act, the enquiry Officer came to the conclusion that the application of the petitioner is barred by limitation, the same not having been presented within the prescribed period of one year as required by S. 5 (2) from the date of coming into force of the Act. The Act came into force on the 18th of June 1974. He also came to the conclusion that there is no provision for condoning the delay in presenting the application. The Act came into force on the 18th of June 1974. He also came to the conclusion that there is no provision for condoning the delay in presenting the application. According to him, the provisions of S. 5 of the limitation Act, 1963 are not applicable firstly for the reason that there is exclusion of the provisions of S. 5 of the Limitation Act and secondly for the reason that the State Government which is the authority to take the decision under s. 5 not being a Court, S 5 of the limitation Act cannot be invoked. The State Government accepting the opinion of the Enquiry Officer made an order on the 4th of May 1982 rejecting the application of the petitioner as barred by limitation. The petitioner has challenged the said order and has prayed for a direction to the State Government to condone the delay and to consider the claim of the petitioner on merits. 2. Sri Channabasavaiah, the petitioner in WP No 17792 of 1981 joined service in the Government Silk Filature in the year 1955 as a labourer and in due course earned promotion as Assistant Factory Manager, Government Silk filatures. In the Service Register, his date of birth is entered as 3- 7-1926 and it is on that basis that he has continued in service. He filed a WP 12948 of 1981 in this Court for the issue of a writ in the nature of mandamus directing the State Government to accept 3-1-1930 as his correct date of birth as against 3-7-1926 entered in the Service Register. That petition was disposed of by the learned single Judge on the 2nd of July 1981. The learned Single Judge gave an opportunity to the petitioner to make an application for the altering his date of birth and also to make an application under S. 5 of the limitation Act for condoning the delay in making the application. If the petitioner makes such application, the State Government was directed to consider the application for condonation of delay in the first instance and if it comes to the conclusion that it is maintainable, to decide whether the delay should be condoned. If the delay is condoned the State Government was directed to consider the application under S. 5 of the Act on merits expeditiously. If the delay is condoned the State Government was directed to consider the application under S. 5 of the Act on merits expeditiously. Thereafter the petitioner presented an application on 4-7-1981 under S. 5 of the Act for altering his date of birth from 3-7-1926 to 3-1-J930. He also made a separate application under S. 5 of the Limitation Act for condoning the delay in making the application under S. 5 of the Act. The State government appointed an Enquiry officer to enquire into the matter and to make a report after giving the petitioner an opportunity of presenting his case. The Enquiry officer made a report to the State government. He came to the conclusion that the provisions of S. 5 of the Limitation Act are not applicable on the ground that the applicability of the same has been excluded by the provisions of the Act. He also opined that the State Government not being a Court the provisions of S. 5 cannot be successfully pressed into service. The State government accepted the said report and rejected the application of the petitioner for condoning the delay, by its order dated 18th August 1981. The state Government was, therefore, not required to consider the claim of this petitioner on merits. It is the said order that is challenged by the petitioner in this writ petition. ( 3 ) HAVING regard to the contentions urged by the learned counsel for all the parties, the following points arise for determination :-1) Whether 8. S of the Limitation act is excluded by the Act ; 2) Whether the power conferred by S. S of the Limitation Act can be exercised only by a Court ; 3) Whether the State Government exercising powers under S. 5 of the act is 'court' under the Limitation act. ( 4 ) WE shall now take up the first point for consideration. Sub-S. (2) of S. 29 of the Limitation Act provides as follows :-"29 (2) Where any special or local law prescribes for any suit, appeal or application a period of limtation different from the period prescribed by the Schedule, the provisions of s. 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 Ss. 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such' special or local law. It is not disputed that the Act with which we are concerned in these cases is special law and that a period of limitation different from the period prescribed by the Schedule to the limitation Act has been prescribed low making applications for altering the date of birth under S. 5 of the Act. It is therefore, clear that the provisions of Ss. 4 to 24 of the Limitation Act shall be applicable to the applications under S. 5 of the Act in so far as and to the extent to which they are not expressly excluded by the Act, which is admittedly a special law. If there is no such exclusion, the provisions of Ss. 4 to 24 of the Limitation Act will become applicable to applications under S. 5 of the Act. In this connection it would be useful to bear in mind the principles laid down by the supreme Court in Hukamdev Narain yadav v. Lalit Narain Mishra (AIR 1974 s. 480) wherein it is laid down as follows :- "even in a case where the special law does not exclude the provisions of Ss- 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 the provisions of the special law or the nature of the subject-matter and the scheme of the Special Law exclude their operation. What the Court has to see is whether the scheme of the special law and the nature of the remedy provided therein are such that the legislature intended it to be a complete Code. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded then the benefits conferred therein cannot be called in aid to supplement the provisions of the special act. In this case the Act does not exclude the provisions of S. 5 of the limitation Act by an express reference to the said provision. In this case the Act does not exclude the provisions of S. 5 of the limitation Act by an express reference to the said provision. It was however, contended by the learned government Advocate that if the scheme of the Act and the object sought to be achieved are examined it will become clear that the legislature intended it to be a complete Code and to exclude the provisions of S. 5 of the Limitation Act. We shall therefore, examine the object and scheme of the Act to ascertain if the legislature intended to exclude the operation of S. 5 of the Limitation Act. ( 5 ) THE preamble to the Act, viz. , the Karnataka State Servants (Determination of Age) Act, 1974 reads as follows :-"an Act to provide for the determination of the age of State servants. Whereas it is expedient to provide for the determination of the age of State Servants in so far as it relates to their conditions of service as such State Servants : the object of the Act is to provide for determination of the age of State servants only in so far as it relates to their conditions of service as such state Servants. It is for this limited purpose that provisions have been made for determining the age of State servants. S. 3 of the Act contains detailed provisions for determination of age on entry into State Services it inter-alia provides that the age and date of birth accepted and recorded or deemed to have been accepted and recorded in the Service Register or book or any other record of service under sub-sec. (2) of S. 3 or as the case may be, sub-sec. (3), shall subject to any alteration made under S. 5, be applicable for all purposes relating to the conditions of service including superannuation and retirement of the state Servant concerned. S. 4 provides for bar of alteration of age except under the Act in so far as it relates to conditions of service of State Servants. S. 5 which is the important provision invoked in these cases may for the sake of convenience be extracted as follows :- "5. Alteration of age or date of state Servants- ( I) Subject to sub- sec. S. 5 which is the important provision invoked in these cases may for the sake of convenience be extracted as follows :- "5. Alteration of age or date of state Servants- ( I) Subject to sub- sec. (2) the State Government may at any time after an inquiry, alter the age and date of birth of a State servant as recorded or deemed to have been recorded in his service register or book or any other record of service ; provided that no such alteration shall be made if the age and date of birth of a State Servant has been accepted and recorded in the service register or book or any other record of service in pursuance of a decree of a Civil Court obtained by the State Servant after he became such servant against the State government. Provided further that no such alteration shall be made without giving the State Servant concerned a reasonable opportunity of being heard. (2) No such alteration to the advantage of a State Servant shall be made unless he has made an application for the purpose within three years from the date on which his age and date of birth is accepted and recorded in the service register or book or any other record of service or within one year from the date of commencement of this act, whichever is later. (3) The State Government may by notification in the official Gazette appoint such officer as it deems fit for the purpose of making an enquiry under this section;" Provided that the powers of the state Governmet under sub-sec. (1) and this subsection shall in respect of the alteration of the age or date of birth of a State Servant who. . . . . . . . (i) Is subject to the control of the High Court under Art. 235 of the Constitution, be exercisable by the High Court ; (ii) Is an officer and servant of the High Court, be exercisable by the Chief Justice or such other judge or officer of the High Court as he may direct. (4) The officer appointed under sub-sec. . (i) Is subject to the control of the High Court under Art. 235 of the Constitution, be exercisable by the High Court ; (ii) Is an officer and servant of the High Court, be exercisable by the Chief Justice or such other judge or officer of the High Court as he may direct. (4) The officer appointed under sub-sec. (3) shall have the powers of a Civil Court while triying a suit under the Code of Civil procedure 1908 (Central Act 5 of 1908), in respect of the following matters, namely ; (a) summoning and enforcing the attendance of any person and examining him on oath ; (b) requiring the discovery and production of any document ; (c) receiving evidence on affidavit ; (d) requisitioning any public record or copy thereof from any court or Office ; (e) issuing commissions for the examinations of witnesses or documents. (5) (a ). The Officer appointed under sub-sec. (3) shall be deemed to be a civil Court and when any offence as is described in Ss. 178, 179 and 180 or S. 228 of the Indian penal Code, 1860, (Central Act 45 of 1860), is committed in the view or presence of the said officer, may after recording the facts constituting the offence and the statement of the accused as provided for in the Code of criminal Procedure, 1973 (Central act 2 of 1974)), forward the case to a Magistrate having jurisdiction or try the same and the Magistrate to whom any such case is forwardes shall proceed to hear the complaint against the accused as if the case had been forwarded to him undrr s. 346 of the Code of Criminal Procedure, 1973. (b) Any proceeding before the said officer shall be deemed to be a judicial proceeding within the meaning of Ss. 193 and 228 of the Indian penal Code, 1860 (Central Act 45 of 1860 ). "s. 6 bars the jurisidiction of all courts and further provides that no decision under the Act shall be questioned in any Court of law. Sub-sec. (I) of S. 5 provides that subject to sub- sec. (2), the State Government may, at any time alter the age and date of birth of a State Servant. Sub- sec. "s. 6 bars the jurisidiction of all courts and further provides that no decision under the Act shall be questioned in any Court of law. Sub-sec. (I) of S. 5 provides that subject to sub- sec. (2), the State Government may, at any time alter the age and date of birth of a State Servant. Sub- sec. (2) of S. 5 provides that no such alteration to the advantage of a state Servant shall be made unless he has made an application within three years from the date on which his age and date of birth is accepted and recorded or within one year from the date of commencement of the Act, whichever is later. It is thus clear that the power of altering the date of birth of a state Servant to his advantage cannot be exercised by the State government suo motu and at any time it pleases. It can resort to such alteration to the advantage of State servants only if he makes an application for that purpose within the prescribed period of limitation. The other sub-sections of S. 5 pertain to the procedure to be followed in the matter of determination of the correct date date ot birth. As the state Servants have to retire on attaining the Age of Superannuation, acceptance by the appointing authority of the correct date of birth assumes great importance. It is a matter of common knowledge that most of the state servants barring the class IV (menial service) are educated persons, who are required to possess a minimum amount of educational qualification. In other words great majority of the State servants are educated persons. Age is a very important factor which is taken into consideration at the time of appointment. The rules invariably prescribe the minimum and maximum age for recruitment. When there are two candidates of equal merit and equal qualifications and only ona of them has to be selected, age would become the determining factor for the final choice. So great is the importance of the correct date of birth which becomes very relevant at the time of recruitment itself. The vacancy position in the department is assessed by taking into consideration the number of persons that are expected to retire on attaining the age of superannuation during the particular year. So great is the importance of the correct date of birth which becomes very relevant at the time of recruitment itself. The vacancy position in the department is assessed by taking into consideration the number of persons that are expected to retire on attaining the age of superannuation during the particular year. Thus acceptance of the date of birth lor the purpose of service assumes great importance not only to the state servants concerned, but also to others. It is the basis on which depends the number of vacancies to be filled up and it is the basis on which the promotions from the lower cadre to the higher cadre get determined. Hence, in the parlance of service law great importance is attached to the acceptance of date of birth for the purpose. Once that date is accepted all further activities get regulated on that basis and any interference with the same will bring about considerable amount of disturbance. Educated persons are expected to know their correct date of birth and are therefore xpected to furnish material in that behalf at the time of their entering into service by themselves giving a particular date entering into service itself. It is a matter of common knowledge that many persons after entering into service by themselves giving a particular date of birth try to assert at a later stage that they are younger in order to continue in service for a longer period. Persons occupying very high positions have also succumbed to such temptations. Hence it is obvious that it is both in the interest of the administration and in the interest of all the state servants that there should be finality in regard to the acceptance of their dates of birth. There may however be some exceptional and genuine cases where wrong dates of birth have been given and there is clinching material to establish the correct dates of birth and the reasons for giving wrong dates of birth. Though it is imperative to bring finality to the accepted date of birth it is necessary to provide for investigation of genuine claims in regard to alterations of the date of birth. Though it is imperative to bring finality to the accepted date of birth it is necessary to provide for investigation of genuine claims in regard to alterations of the date of birth. It is with this object that express provisions have been made under S. 5 of the Act providing that no alteration to the advantage of the state servant shall be made unless he has made an application for that purpose within three years from the date on which his age and date of birth is accepted and recorded or within one year from the date of commencement of the Act which ever is later. In other words, the mandate of the provisions is quite clear, namely, that no alterations should be made if any claim is made beyond the prescribed period of limitation. It could not have been the intention of the legislature that applications for altering the date of birth could be entertained even after the prescribed period of limitation, as that would defeat the object and result in great uncertainty, inconvenience and hardship. The object of prescribing limitation in sub-section (2) is to ensure that finality in the matter is reached at an early date and the position becomes certain for every one concerned. Having regard to the object and scheme of the Act it is obvious that the legislature inended that the Act should be a complete and self contained Code in regard to determination or alteration of the age or date of birth of state servants in so for as it pertains to their conditions of service. We have therefore, no hesitation in taking the view, on an examination of the provisions of the Act that S. 5 of the Limitation Act is necessarily excluded. Hence S. 5 of the Limitation Act cannot be invoked by the petitioners in these cases. ( 6 ) WE shall now take up the second point for consideration. For this purpose we shall assume that the provisions of S. 5 of the Limitation Act have not been expressly excluded by the Act. It was contended on behalf of the petitioners that when once it is established that there is no express exclusion of S. 5, S. 5 of the Limitation Act becomes automatically applicable. For this purpose we shall assume that the provisions of S. 5 of the Limitation Act have not been expressly excluded by the Act. It was contended on behalf of the petitioners that when once it is established that there is no express exclusion of S. 5, S. 5 of the Limitation Act becomes automatically applicable. It was, however, contended by the learned Government Advocate that S. 5 of the Limitation Act cannot be invoked by the petitioners unless they are in a position to prove that the State Government which has been conferred the power under S. 5 of the act is 'court'. For appreciating these contentions we may for the sake of convenience extract the provisions of s. 5 of the Limitation Act :-" 5. Any appeal or any application other than an application under any of the provisions of order XXI of the Code of Civil procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. "it is clear from this provision that it is for the Court to be satisfied that the appellant or the applicant or who has invoked the provisions of S. 5 of the Limitation act had sufficient cause for not preferring appeal or making the aplication within the prescribed period. In other words, the power of extension of the prescribed period can be exercised only by the Court. If the parliament intended that that power could be exercised by any other authority, the word 'court' would not have been used. It was contended by the learned Government Advocate that having regard to the principles laid down by the Supreme Court it is clear that the power under S- 5 of the Limitation Act can be exercised only by the Court and not by any other authority. He invited our attention to the decision in The Commissioner of Sales Tax, Uttar Pradesh, lucknow v. M/s. Parson Tools and Plants, kanpur (AIR 1975 S. C. 1039 ). He invited our attention to the decision in The Commissioner of Sales Tax, Uttar Pradesh, lucknow v. M/s. Parson Tools and Plants, kanpur (AIR 1975 S. C. 1039 ). In that case the question that came up for consideration was about the applicability of S. 14 of the Limitation Act, which provides for exclusion of time of proceedings bona fide in Court without jurisdiction. Analysing S. 14 of the Limitation Act, the Supreme court pointed out that it will apply only if the following four conditions are satisfied : (1) Both the prior and subsequent proceedings are civil Proceedings prosecuted by the same party; (2) the prior proceedings had been prosecuted with due diligence and in good faith ; (3) the failure of the prior proceedings was due to a defeat of jurisdiction or other cause of a like nature ; and (4) both the proceedings are proceedings Court, (underlining italic is ours ). As the proceedings in that case were before' the authorities U. P. Sales Tax and not before Court, it was held that S. 14 of the Limitation Act does not in terms apply to the proceedings before such Tribunals. The provisions of S. 14 of the act could be invoked having regard to the provisions of S. 29 (2) of the limitation Act. But as S. 14 itself requires that both the proceedings are proceedings in a Conrt, it was held that S. 14 of the Limitation Act cannot be invoked as both the proceedings were not in a Court, but before the prescribed authority under the U. P. Sales Tax. What applies to S. 14 of the Limitation act equally applies to S. 5 of the Limitation Act. It was however, pointed out by the Learned counsel for the respondent that in the said decisiont heir Lordships have further examined as to whether the general principles of S. 14 of the limitation Act would be applicable on grounds of justice, equity and good conscience. On examining the scheme and language of the provisions, their Lordships have held that the legislature has deliberately excluded the application of the principles underlying Ss. 5 and 14 of the limitation Act. On examination of the scheme and object of the Act, we have also recorded a similar finding on the first point. On examining the scheme and language of the provisions, their Lordships have held that the legislature has deliberately excluded the application of the principles underlying Ss. 5 and 14 of the limitation Act. On examination of the scheme and object of the Act, we have also recorded a similar finding on the first point. ( 7 ) WE may also advert to the privy Council in Maqbul Ahmad v. Omkar Pratap Narain Singh (A. I. R. 1935 privy Council 85) wherein it is observed as follows :-". . . . . . . . . . . . IN their Lordships opinion it is impossible to hold that in a matter which is governed by Act, an Act which in some limited respects give the Court a statutory discretion, there can be implied in the Court, outside the limits of the act, a general discretion to dispense with its provisions. It is to be noted that this view is supported by the fact that S. 3 of the Act is peremptory and that the duty of the Court is to notice the Act and give effect to it, even though it is not referred to in the pleadings"therefore, if S. 5 of the Limitation act is not applicable, the question of applying the underlying principles of S. 5 on the grounds of justice equity and good conscience does not arise. ( 8 ) ANOTHER decision which supports the contention of the learned government Advocate is the one reported in Smt. Susheela Devi v. Ramanandan Prasad (A. I. R 1976 Supreme Court 177 ). It was held in that case that section 5 of the Limitation Act is not applicable to applications under Kosi area (Restoration of Lands to Raiyats) act, 1951 on the ground that the collector though vested with certain powers under the Civil Procedure code, is not a Court. The relevant observations may be extracted as follows :-". . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE Third ground on which the decision of the High court rests relates to the applicability of S. 5 of the Limitation Act, 1963. We do not see how S. 5 could be invoked in connection with the application made on October 17, 1965 by the first respondent. . . . . . . . . . . . . THE Third ground on which the decision of the High court rests relates to the applicability of S. 5 of the Limitation Act, 1963. We do not see how S. 5 could be invoked in connection with the application made on October 17, 1965 by the first respondent. Under s. 5 of the Limitation Act an appeal or application ["may be admitted after the prescribed period if the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. " The collector to whom the application was made was not a court, though S. 15 of the Act vested him with certain specified powers under the Code of Civil Procedure ; also, the kind of application that was made had no time limit prescribed for it, and no question of extending the time could therefore arise. We therefore think that the high Court misdirected itself in referring to S. 5 of the Limitation act. . . . . . . . . . . . . . . . . . . . . . . . "the Principle laid down by the supreme Court in this case fully supports the contention of the respondents that S. 5 cannot be invoked unless the authority exercising the functions is 'court' under the Limitations Act. ( 9 ) ANOTHER important decision of the Supreme Court bearing on this question is the one reported in The kerala State Electricity Board Trivendrum v. T. P. Kunhaliumm (AIR 1977 Supreme court 282 ). Paragraph 18 of the judgment which is relevant may be extracted as follows :-"18. The alteration of the division as well as the change in the collection of words in Art. 137 of the limitation Act 1963 compared with art. 181 of the 1908 Limitation Act shows that applications contemplated under Art. 137 are not applications confined to the Code of Civil procdure. In the 1908 Limitation act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The words "any other application" under Art. 137 cannot be said on the principle of edjusdem generis to be applications under the Civil Procedure Code other than those mentioned in part i of the third division. In the 1908 Limitation act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The words "any other application" under Art. 137 cannot be said on the principle of edjusdem generis to be applications under the Civil Procedure Code other than those mentioned in part i of the third division. Any other application under Art. 137 would be petition or any 'application under any Act. But it has to be an application to a Court for the reason that Ss. 4 and 5 of the 1963 limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period. "it is clear that for coming to the conclusion that Art. 137 of the Limitation Act contemplates applications only to Courts, reliance was placed on the language of S. 5 of the Limitation Act which requires the Court to be satisfied that party had sufficient cause. It was however, contended by the learned Counsel for the petitioner that the principle laid down by the supreme Court in Vidyacharan Shukla v. Khubchand Baghel (AIR 1964 S. C. 1099) supports their contention. In that case the applicability of S 12 the Limitation Act to the appeal filed to the High Court under the representation of the People Act, 1951, as it then stood came up for consideration. An appeal under S. 116 A ot the Representation of the people Act, 1951 lies to the High court. S. 116 A (2) contains deeming provision to the effect that the appeal shall be deemed to be an appeal from an original decree passed by Civil Court. Hence, by fiction it was deemed that the appeal to the High Court must be deemed to have been presented from a decree of a Civil Court. As the period of limitation prescribed for that appeal was different from the one prescribed by the Limitation act, S. 29 (2) was attracted. Consequently the provisions of Ss. 4 to 24 would get attracted, unless they were expressly excluded. It is in this background it was held that s. 12 of the Limitation Act was applicable. As the period of limitation prescribed for that appeal was different from the one prescribed by the Limitation act, S. 29 (2) was attracted. Consequently the provisions of Ss. 4 to 24 would get attracted, unless they were expressly excluded. It is in this background it was held that s. 12 of the Limitation Act was applicable. We fail to see how the principle laid down by the Supreme court in the said decision supports the contention of the petitioner. Reliance was also placed by the learned counsel for the petitioners on the decision of the Supreme Court in the The Commissioner of Sales Tax U. P v. M/s. Madanlal Dan and Sons Bareilly (AIR 1977 S C. 523 ). That was a case in which the question for consideration was as to whether the time required for obtaining the copy of order could be excluded invoking the the provisions of S. 12 (2) of the limitation Act, in the matter of presenting a Revision petition under s. 10 of the U. P. Sales Act. Though the authority was not a Court, it was held that S. 12 (2) of the Limitation act is attracted, the applicability of the same not having been expressly excluded. But it is necessary to point out that the language of subsection (2) of S. 12 of the Limitation act which came up for consideration in that case does not warrant an inference that it is only the time required for obtaining the copy of the order that can be excluded if it is a Court. Sub-Sec. (2) of S. 12 provides that in computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment; the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or soaght to be revised or reviewed shall be excluded. It is clear that the said provision does not speak of a Court at all. But it was pointed out that the explanation to s. 12 provides that in computing under this Section the time requisite for obtaining a copy of a decree or an order any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded. But it was pointed out that the explanation to s. 12 provides that in computing under this Section the time requisite for obtaining a copy of a decree or an order any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded. In the context it is obvious that expalanation to S. I2 has restricted application to Court and it does not govern all the situations. It is applicable only to cases where decree or orders are required to be prepared by the Court. The Explanation would obviously be not applicable to Sub-sec. (4) ot S. 14, which speaks of making an application for setting aside the award. Hence, in our opinion, the petitioners cannot derive any support from this decision of the Supreme Court. ( 10 ) CONSIDERABLE reliance was placed by the learned counsel for the petitioners on the decision of the supreme Court in Mangu Ram v. Municipal Corporation Of Delhi (AIR 1976 s. C. 105 ). The question for consideration in that case was about the applicability of Sec. 5 of the limitation Act to application for special leave under Sec. 417 (3) of the criminal Procedure Code. Sub-sec. (4) of S. 417 has prescribed sixty days as a period of limitation for filing the application. The question for consideration was as to whether the applicant can invoke Sec. 5 of the limitation Act in respect of such an applcation. The Supreme Court held that sec. 5 of the Limitation Act is applicable. It came to the conclusion that special period of limitation having been prescribed under Sec. 417 (4) under a special law, viz. , Criminal procedure Code, Sec. 29 (2) gets attracted. As there is nothing to indicate that the applicability of Sec. 5 has been excluded, it was held that sec. 5 of the Limitation Act is applicable to such application. But it is necessary to point out that the application was to a Court and not to any other authority. Hence, this decision does not support the contention of the respondents that Sec- 5 can be invoked even if the authority is not a Court. Another decision relied upon by the learned counsel for the petitioner in this behalf is the one reported in Mohad. Ashraq V. State transport Appellate Tribunal U. P. ( AIR 1976 SC. Hence, this decision does not support the contention of the respondents that Sec- 5 can be invoked even if the authority is not a Court. Another decision relied upon by the learned counsel for the petitioner in this behalf is the one reported in Mohad. Ashraq V. State transport Appellate Tribunal U. P. ( AIR 1976 SC. 2161 ). Sec. 58 (2) of the Motor vehicles Act requires that an application for renewal of permit should be made not less than 120 days before the date of expiry of the permit. Sub-Sec. (3) of Sec. 58 provides that not withstanding this provision. the Regional Transport authority may entertain an application for renewal of a permit after the last date specified in sub-sec. (2) if the application is made not more than 15 days affer the said last date and is accompanied by the prescribed fee, Having regard to the scheme of sec. 58, the Supreme Court held that it could not have been the intention of the legislature to permit further condonation of delay by invoking Sec. 5 of the Limitation Act, after providing that, delay of not more than 15 days in making the application for renewal should be condoned. In other words, the Supreme Court came to the conclusion that the scheme of Sec. 58 indicates that there is express exlusion of the provisions of Sec. 5 of the Limitation Act. This decision is an authority for the proposition that express exclusion of S. 5 of the Limitation Act can be gathered from the scheme and object of the act. It is not possible to infer from this decision that the Supreme Court would have held that Sec. 5 of the limitation Act could have been invoked even though the Regional transport Authorty is not a 'court', had there been no provision for condonation of delay under Sub-Sec. (3) of Sec. 58 restricting that period of 15 days. We are, therefore, clearly of the opinion that this decision does not in any way help the petitioner. ( 11 ) ANOTHER decision relied upon by the learned counsel for the petitioner is the one reported in Justiniano augusto De Pledade Barreto v. Antonio vicente Da Fonseca ( AIR 1979 SC. 984 ). We are, therefore, clearly of the opinion that this decision does not in any way help the petitioner. ( 11 ) ANOTHER decision relied upon by the learned counsel for the petitioner is the one reported in Justiniano augusto De Pledade Barreto v. Antonio vicente Da Fonseca ( AIR 1979 SC. 984 ). That is a case in which it was contended that the provisions of Sec. 29 (2) of the Limitation Act are not attracted on the ground that the portuguese Civil Code dealing with the subject of limitation etc. , is not a special or local law. It was also contended that provisions of that code were repugnant to the provisions of Limitation Act, 1963. The supreme Court held that the portuguese Civil Code is a local law and that no question of repugnancy arises. The contention that Sec. 29 (2) of the Limitation is not attracted on the ground that the Portuguese civil Code is neither a special nor local law was negatived holding that it is a local law. Though it was held that the provisions of Sec. 29 (2) of the Limitation Act are attracted the question as to whether Sec. 5 can be invoked by an authority other than a court did not fall for consideration in that case. Hence, this decision also does not help the petitioner. Considerable reliance was placed on the following observations in paragarph 18 of the judgment of the supreme Court in Hukumdev Narain yadav v. Lalit Narayan Mishra ( AIR 1974 sc 480 )"18. It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would. be attracted. But this is not what S. 29 (2) of the Limitation Act says, because it provides that Ss. 4 to 24, (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. If none of them are excluded, all of them would become applicable. be attracted. But this is not what S. 29 (2) of the Limitation Act says, because it provides that Ss. 4 to 24, (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. If none of them are excluded, all of them would become applicable. Whether those sections are applicable is not determined by the terms of those sections, but by their applicability or inapplicability to the proceedings under the special or local law, A person who is a minor or is insane or is an idiot cannot file an election petition to challenge an election, nor is there any provision in the Act for legal representation of an election petitioner or respondent in that petition who dies, in order to make S. 16 of the limitation Act applicable. The applicability of these provisions has, therefore to be judged not from the terms of the Limitation act but by the provisions of the act relating to the filing of election petitions and their trial to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation act mentioned in S. 29 (2) of this act". Ss. 4 to 24 of the Limitation Act would be applicable when the following conditions are satisfied : (i) That a period of limitation different from the period prescribed by the Schedule is prescribed by any special or local law; (ii) That they are not expressly excluded by such special or local law. The Supreme Court pointed out that the exclusion has to be gathered from the provisions of Special or local law concerned and not from the language of Ss. 4 to 24 of the Act. Even if there is no exclusion and the provisions of Ss. 4 to 24 of the Limitation Act are therefore, applicable, the question as to whether the benefit of S. 5 can be availed of by a person depends upon the facts and circumstances of the case and the provisions of s. 5 of the Limitation Act. That the applicability of S. 5 of the Limitation act is not excluded only leads to the inference that it is applicable. That the applicability of S. 5 of the Limitation act is not excluded only leads to the inference that it is applicable. It does not further lead to the inference that the benefit of that S. will be available in every case irrespective of the scheme of the law and the facts of the case. The ingredients of S. 5 have to be examined for the purpose of determining as to whether the benefit of S. 5 becomes available to the person or not. It is not possible to understand the observations of the supreme Court as further holding that the benefit of S. 5 becomes available to the person irrespective of the question as to whether the ingredients of S. 5 are satisfied or not. Another decision of the Supreme court relied upon by the petitioner is The Sahkari Ganna Vikas Samiti Ltd. , v. Mahabir Sugar Mills (P) Ltd. , (AIR 1982 S. C. 119 ). The Supreme Court has held in that case that the Divisional Commissioner under U. P. Act 24 of 1953 was not persona designata but a revenue Court. Hence, it was held that S. 5 applies to appeals before the Divisional Commissioner. It is obvious that the Supreme Court proceeded on the basis that the divisional Commissioner is a Court and that S. 5 of the Limitation Act was applicable. It is obvious that if the Supreme Court had come to the conclusion that the Divisional commissioner was not a Court, it would not have held that S. 5 of the limitation Act is not applicable. Hence, in our opinion, this decision also does not help the contentions of the petitioner. After considering the principles laid down by the Supreme Court, which we have discussed above we have no hesitation in holding that the power conferred by S. 5 of the Limitation Act can be exercised only by a court. ( 12 ) AS we have rested our conclusions on the decisions of the Supreme court, it is unnecessary to consider the decisions of the various High courts cited by the learned counsel appearing for both the sides. We would however, like to advert to some of the decisions of our own which have a bearing on this question. In the decision reported in Nagreddy v. Khandappa (1970 (1) Mys. We would however, like to advert to some of the decisions of our own which have a bearing on this question. In the decision reported in Nagreddy v. Khandappa (1970 (1) Mys. L. J. 134) a Division bench of this Court has held that S. 5 of the Limitation Act applies only to proceedings taken before a Civil court. In the decision reported in bando Banaji Mutalik v. Bhaskar Balaji kulkarni (1972 (I) Mys. L J 649), a Division Bench of this Court has held that s. 5 of the Limitation Act would not apply to proceedings under S. 112 of the Mysore Land Reforms Act, as the 'tribunal' is not a Court. In Chinnavenkatesh R. T. v. Senior RTO, Mysore (1975 (2) Kar, L. J. 385) the learned single Judge of this Court has held that s. 5 of the Limitation Act is not applicable to appeals filed under s. 15 of the Motor Vehicles Taxation act, as the appellate authority under the said provision is not a Court. In S. Sidde Gowda v. Mysore Slate Transport Appellate Tribunal (1974 (1) Kar. L. J. 30) the learned single Judge of this court has held that S. 5 of the Limitation act is not applicable to applications under s. 58 (2) of the Motor Vehicles Act on the ground that the provisions of sub-sec. (3) of S. 58 have the effect of excluding applicability of s. 5 of the Limitation Act. The view taken in all these cases by our Court is consistent with the view we have taken in these cases and therefore, no detailed examination of these decisions is necessary. ( 13 ) THE last point for considration is as to whether the State government which is empowered by s. 5 of the Act to alter the date of birth is 'court' within the meaning of that expression occurring in S. 5 of the Limitation Act- It was contended by the learned counsel for the petitioners that the scheme of S. 5 of the Act shows that State government can exercise the powers of a Civil Court and therefore it must be regarded as Court. Sub- sec. (3) of S. 5 empowers the State government to appoint an enquiry officer for the purpose of enquiring into an application made by a state Servant for altering the date of birth to his advantages. Sub-sec. Sub- sec. (3) of S. 5 empowers the State government to appoint an enquiry officer for the purpose of enquiring into an application made by a state Servant for altering the date of birth to his advantages. Sub-sec. (4) of S. 5 provides that the enquiry officer so appointed shall have the powers of a Civil Court while trying a suit under the Code of civil Procedure, viz. , (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any. document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or Office; (e) issuing commissions for the examinations of witnesses or document. Merely because certain specified powers under the Code of Civil procedure are conferred on the enquiry Officer, the State Government does not become a 'court' In the Bharat Bank Ltd Delhi v. The employees of The Bharat Bank Ltd delhi And The Bharat Bank Employees union Delhi (AIR 1950 S. C. 188) the supreme Court has held that though the functions and duties of the industrial Tribunal are very much like those of a body discharging judicial functions, it is not a Court. The petitioners also sought to support the contention by invitting our attention to sub-sec. (5) of S. 5 of the Act. It provides that the Officer appointed under sub- sec. (3) shall be deemed to be a Civil Court and when any offence as is described in S. 175, S. 178, s. 179, S. 180 or S. 288 of the Indian penal Code 1860, is committed in the view or presence of the said officer, the said officer may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973, forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under S. 346 of the Code of Criminal Procedure. It is obvious for the limited purpose specified in that sub-sec, the Enquiry officer shall be deemed to be a civil Court. It is obvious for the limited purpose specified in that sub-sec, the Enquiry officer shall be deemed to be a civil Court. As fiction is created for a limited purpose, it cannot be further extended to deem the Enquiry officer or the State Government as a Court for the purpose of Limitation act. We have, therefore, no hesitation in taking the view that neither the Enquiry Officer nor the State government functioning under S- 5 can be regarded as 'court', within the meaning of the expression 'court' in S. 5 of the Limitation act. ( 14 ) TO sum up, our conclusions are as follows :- that the provision of S. 5 of one Limitation Act are expressly excluded in the Karnataka State servants (Determination of Age) act, 1974 ; (ii) That the power under S. 5 of the Limitation Act can be exercised only by a Court ; (iii) That neither the State government nor the Enquiry officer exercising powers under s. 5 of the Act is a 'court'. ( 15 ) HAVING regard to our aforesaid findings, we hold that S. 5 of the Limitation Act is not applicable to proceedings under S. 5 of the karnataka State Servants (Determination of Age) Act, 1974. Hence, both these Writ Petitions fail and are dismissed. No costs. --- *** --- .