Dilshad Ahmed vs The State of Uttarakhand

B.S. Verma, J.

(Interim Relief Application No. 6371 of 2011)

Learned Counsel for the Petitioner files supplementary affidavit. The same is taken on record.

Heard learned Counsel for the parties and perused the record.

Learned Counsel for the State-Respondent has submitted that this writ petition may be disposed of at the admission stage, since there is No. factual dispute and there is No. need to file counter affidavit. Only the legal issue is involved whether the appeal u/s 9 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (for short the Act) was barred by limitation.

By means of this writ petition, the Petitioner has sought a writ in the nature of certiorari quashing the order dated 27-5-2011 passed in Misc. Civil Appeal No. 20 of 2009 Dilshad Ahamad v. State of Uttarakhand, whereby the learned District Judge Pithoragarh has dismissed the appeal filed by the Petitioner-Appellant on the ground of limitation and it has been held by the appellate court that the appeal was filed after 15 days from the date of order.

According to the learned Counsel for the Petitioner, the appellate Court has observed in paragraph No. 9 of the impugned judgment that the order under appeal was passed on 6-11-2009 and the appeal was preferred on 30-11-2009. This fact is not disputed.

Learned Counsel for the Petitioner has contended that the learned appellate Court has committed a manifest error of law in not considering the averment made in paragraph No. 9 of the memo of appeal where it has been specifically stated that the publication of the order against the Petitioner was made on 17-11-2009. To support his contention, learned Counsel for the Petitioner has filed the information in the form of question-answer obtained from the office of the Prescribed Authority, which has been annexed as Annexure-6 to the petition, which goes to show that the order dated 6-11-2009 was published on 17-11-2009.

Sub-section (2) of Section 9 of the Act provides that an appeal under Sub-section (1) shall be preferred from an order u/s 5, within fifteen days from the date of publication of the order under Sub-section (1) of that section. Since the order u/s 5(1) of the Act was published on 17-11-2009, therefore, the limitation of 15 days shall run from 17-11-2009 and not from the date of order passed by the Prescribed Authority i.e. 6-11-2009.

Learned Counsel for the State has also not disputed this fact that the publication was made on 17-11-2009 and that the appeal has been filed within a period of fifteen days on 30-11-2009.

Learned Counsel for the Petitioner has further contended that although the appeal was dismissed as barred by limitation, but in paragraph No. 7, the learned appellate Court has also addressed on merits.

By a perusal of the last paragraph of the impugned order dated 27-5-2011 passed by the appellate court it is evident that the appeal was dismissed on the ground of limitation alone, while in the memo of appeal a number of other grounds were also taken to assail the order of the Prescribed Authority. In this view of the matter, since the appeal is undisputedly filed within time, the writ petition deserves to be allowed outright and the order passed by the learned appellate Court deserves to be set aside.

The writ petition is allowed. The impugned order dated 27-5-2011 is set aside. The Misc. Civil Appeal No. 20 of 2009 Dilshad Ahmad v. State of Uttarakhand stands restored to its original number. The matter is remanded to the appellate Court for decision afresh on merits in accordance with law, after hearing both the parties, expeditiously as far as possible.