SHANTARAM VISHNU KASHALKAR Vs. D J ALLAHABAD

JUDGEMENT

(1.) S. P. Srivastava, J. This petition under Article 226 of the Constitution of India has been filed by the petitioner chal lenging the order dated 20-1-90 passed by the District Judge, Allahabad, dismissing the application under Section 5 of the Limitation Act and rejecting the appeal as time barred.

(2.) THE brief facts for the purposes of the present writ petition are that on 30-4-88, the competent authority declared 148. 78 sq. meters of land as surplus land and directed proceeding under Sections 9 and 10 (1) of the Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred in short 'the Act', to commence for taking possession of the land declared surplus. It is stated that the order dated 30-4-88 passed by the competent authority was sent to the petitioner by means of Form-3 which was delivered to the petitioner on 2-8-88. It has been stated by the petitioner that the order dated 30-4-88 passed by respondent No. 2 was com municated to the petitioner by registered post and the same was received by the petitioner on 2-8-88. THE petitioner imme diately applied for certified copy of the judg ment on 6-8- 88 and the same was delivered on 22-12-88. It is stated that after receiving the certified copy, the petitioner contacted his lawyer for filing an appeal who told that limitation for filing the appeal was up to 16-1-89 but the appeal was filed by him on 10-1-89. THErefore, the appeal was well within time. THE petitioner has also stated that the appeal was reported to be beyond time by 254 days. THErefore, the petitioner filed an application under Section 5 of the Limitation Act for condoning the delay in filing the said appeal. It is further stated that no counter-affidavit Or objection was filed against the application under Section 5 of the Limitation Act, filed by the petitioner, even then respondent No. 1 dismissed the application under Section 5 of the Limita tion Act which is illegal.

(3.) LEARNED counsel for the petitioner has urged that the appellate authority has held that 30-4-88 shall be treated to be a date of Knowledge of the petitioner as on 29-4-88 both parties were present and argu ments were heard on merit and 30-4-88 was fixed for orders and the order-sheet dated J 29-4-88 bears the signature of the learned counsel for the petitioner. It has been urged by learned counsel for the petitioner that the law requires that appeal under Section 33 of the Act shall be filed within 30 days of the date on which the order is communi cated to the tenure-holder. His further con tention is that the appellate authority may entertain the appeal after expiry of the said time if he is satisfied that the appellant was prevented by sufficient cause in filing the appeal in time. His contention is that the date of communication is the relevant date for counting the period of limitation for filing the appeal and as the petitioner ad mittedly received communication on 2-8-88, the period of limitation will start from 2-8-88 and not from 29-4-88 when the mat ter was argued and 30-4-88 was fixed for judgment. Section 33 of the Act is relevant Section in which appeal is filed under the Act, which is quoted herein under: "any person aggrieved by an order made by the competent authority under this Act, not being an order under Section 11 of an order under sub-section (1) of Section 30, may, within thirty days of the date on which the order is communi cated to him, prefer an appeal to such authority as may be prescribed (hereafter in this section referred to as the appellate authority); Provided that the appellate authority may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appel lant was prevented by sufficient cause from filing the appeal in time. "