KARIYAPPA Vs. DEPUTY COMMISSIONER

JUDGEMENT

(1.) This appeal is preferred against the order dated 1-6-1992 passed by the learned single Judge in Writ Petition No. 2038 of 1986 (LA). The writ appeal was filed on 23rd January, 1993. Therefore, the office has raised an objection that the appeal is barred by time, in the light of the provisions contained in Article 117 of the Limitation Act, 1963, and the appellant has not filed any application for condonation of delay.

(2.) The appellant has stated before the Registry that the appeal preferred under Section 4 of the High Court Act being the continuation of the remedy sought in the writ petition under Article 226 of the Constitution, it is not governed by the provisions contained in Article 117 of the Limitation Act, because the proceeding under Article 226 of the Constitution, is not a civil proceeding. Hence, the office has posted the matter before the court for consideration.

(3.) Sri M.R. Rajagopal, learned counsel appearing for the appellant contends that the petition filed under Article 226 of the Constitution is not a civil proceeding, but it is a special proceeding under Article 226 of the Constitution; therefore Article 117 of the Limitation Act, is not attracted, as it is attracted only to civil proceedings. Reliance is placed by the learned counsel for the appellant, in support of his submission, on a decision of the High Court of Gauhati, in State of Assam v Nareshchandra Das, AIR 1983 Gauhati 24. It is also further submitted by the learned counsel for the appellant that if Article 117 of the Limitation Act is held to be applicable to an appeal preferred under Section 4 of the Karnataka High Court Act, it would amount to placing an embargo on the exercise of the jurisdiction under Article 226 of the Constitution; and such an embargo can only be created either by amending the Constitution or by amending the High Court Act or by way of the Rules framed under Articles 226 and 227 of the Constitution.