HEMA MEHRA Vs. CHIEF EXECUTIVE OFFICER AND ORS.

JUDGEMENT

(1.) STATUTORY appeal filed by the petitioner was dismissed vide impugned order dated 1st August, 2014 on the ground that appeal was filed beyond statutory limitation. Learned counsel for the petitioner has handed over copy of the memo of appeal dated 25th November, 2012 filed by the appellant petitioner before the Appellate Authority, which is taken on record. Perusal of the paragraph No. 6 of the memo of appeal would reveal that notice under Section 248 of the Cantonment Act, 2006 dated 25th January, 2012 was received by the appellant petitioner herein on 20th November, 2012. Perusal of memo of appeal further reveals that appeal was preferred soon thereafter on 26.11.2012. As per Schedule V of the Act, appeal may be preferred against the notice under Section 248 of the Act within 30 days from the date of communication of notice under Section 248 of the Act. Act does not require that appeal has to be preferred within 30 days from the date of issuance of notice. Rather in the present case, serial No. 14 of Schedule V of the Act demonstrates that appeal shall be preferred within 30 days from the date of communication of notice under Section 248 of the Act. As discussed hereinbefore, it is specifically stated in paragraph 6 of the memo of appeal that notice under Section 248 of the Act, dated 25th January, 2012, was received by the appellant petitioner on 20th November, 2012. Therefore, period of limitation would commence only from 20th November, 2012. Since appeal was preferred on 26th November, 2012 within six days from the date of receiving communication, therefore, appeal preferred cannot be said to be time barred at the admission stage.

(2.) AT the initial stage of admission of appeal, learned Appellate Authority, ordinarily should accept the contention of the appellant as to when notice under Section 248 of the act was served/communicated to the noticee/appellant, of course, subject to the final decision thereon. At this stage, contention of the appellant that notice under Section 248 of the Act was received by him on 20.11.2012 should not be doubted. However, it would be open to the respondent No. 1 to demonstrate that in fact notice under Section 248 of the Act was served on the noticee/appellant on such and such date. Learned Appellate Authority should record its finding on the question of date of communication of notice under Section 248 of the Act at the time of final judgment and then shall come to the conclusion as to whether appeal was filed within statutory time or was filed beyond the period of limitation as prescribed in Schedule V of the Act.