Shantaram Vishnu Kashalkar vs District Judge and Another

Shitla Prasad Srivastava, J.—This petition under Article 226 of the Constitution of India has been filed by the Petitioner challenging the order dated 20.1.90 passed by the District Judge, Allahabad, dismissing the application u/s 5 of the Limitation Act and rejecting the appeal is time-barred.

The brief facts for the purposes of the present writ petition are that on 30.4.88, the competent authority declared 148.78 sq. metres 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 communicated to the Petitioner by registered post and the same was received by the Petitioner on 2.8.88. The Petitioner immediately applied for certified copy of the judgment 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 upto 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 u/s 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 u/s 5 of the Limitation Act, filed by the Petitioner, even then Respondent No. 1 dismissed the application u/s 5 of the Limitation Act, which is illegal.

A counter-affidavit has been filed in this case on behalf of the State. In Para 10 of the counter-affidavit, reply of Para 11 of the writ petition has been given. In Para 11 of the writ petition, the Petitioner has stated as under:

That it is stated that the intimation about the order dated 30.4.88 passed by the opposite party No. 2 was communicated to the Petitioner by registered post and the same was received by the Petitioner on 2.8.88. The Petitioner immediately applied for a certified copy of the aforesaid judgment on 6.8.88 and the same was delivered on 22.12.88.

The reply given by the State in the counter-affidavit is an under:

That in reply to the contents of paragraph 11 of the writ petition, it is stated that the case was taken up on 29.4.1988 and the counsel for the Petitioner signed the order sheet, wherein it was stated that the case was adjourned for 30.4.1988 and on 30.4.1988 the impugned order was passed. Thus, the Petitioner had knowledge of the order and he ought to have applied for certified copy of the judgment but, however, in compliance with Rule 5 of the Rules framed under the Act the Petitioner received the intimation of the aforesaid judgment on 2.8.1988 and he applied thereafter.

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 arguments were heard on merit and 30.4.88 was fixed for orders and the order-sheet dated 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 u/s 33 of the Act shall be filed within 30 days of the date on which the order is communicated to the tenure-holder. His further contention 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 admittedly received communication on 2.8.88, the period of limitation will start from 2.8.88 and not from 29.4.88 when the matter 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 hereinunder:

any person aggrieved by an order made by the competent authority under this Act, not being an order u/s 11 or an order under Sub-section (1) of Section 30, may, within thirty days of the date on which the order is communicated 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 Appellant was prevented by sufficient cause from filing the appeal in time.

From the above section it is clear that the date of communication is the relevant date. The point for consideration in the present case is whether the date on which learned Counsel for the Petitioner argued the case and signed the order-sheet noting down the date of order shall be treated to be the date of communication of the order to the Petitioner as provided u/s 33 of the Act or the date on which the Petitioner actually received the information through registered post from ceiling office, i.e., 2.8.88. It is admitted in the counter-affidavit of the State, the mode of service of the notice has been indicated under Rule 5, etc. and the communication was made to the Petitioner through registered post. The word ''communication'' has not been defined in the Act itself, therefore, the dictionary meaning can be looked into. The word "communication" has been interpreted by this Court in case of Om Prakash v. State of U.P., through Collector, Saharanpur and Ors. 1989 AWC 1496. The relevant portion of the judgment is quoted hereinunder:

The expression "communication" has not been defined statutorily. In case no such definition or meaning is available, the Dictionary meaning can be looked into with a view to look into the meaning in common parlance. In such matters, the court has to be careful as a word is explained in the Dictionary in different sense. That meaning has to be selected which is relevant.

Websters Third New International Dictionary defines word "communicate" as follows:

to make known, inform a person. 10 convey the knowledge or information of.

According to Collings Cobuild, English Language Dictionary, the word "communicate" signifies, if you communicate another persons, it means to give them information. If you communicate an idea or fee ling, it means to make them aware of it. Communication is the activity or process of giving information to other people.

According to Reader''s Digest Great Encyclopaedic Dictionary, the word "communication" means imparting news, information given.

The aforesaid meaning of word "communicate" may be applied as required by Section 33. If an order has been passed that has to be communicated to the person concerned, i.e., the Petitioner has to be informed. The information about the order has to be given to that person concerned.

From the definition given to the word "communication," it is apparent that the order passed by the competent authority which is to be appealed must be communicated to the person concerned and more date of knowledge of the delivery of the order is not the actual communication of the order. The idea of the Act is that when the order is brought to the notice of the person concerned, he reads the order : he may think as to whether order is against him or in his favour and as to whether he should file appeal or not. Therefore, to my mind, if the Petitioner''s counsel has simply signed the order-sheet after argument and some date was fixed for delivery of judgment or order to the knowledge of the learned Counsel, that knowledge shall not be treated to be a communication to the Petitioner of the actual judgment of the competent authority. As such, the finding of the learned Judge that the Petitioner had knowledge on 30.4.88 is not correct. It was further argued by learned Counsel for the Petitioner that when there was an affidavit filed in support of Section 5 application and there was no counter-affidavit on behalf of the opposite party controverting the allegations contained in the affidavit, the contents of the affidavit filed in support of Section 5 application should have been taken to be correct and there was sufficient cause for condonation of delay. Therefore, the finding recorded by the appellate authority in not accepting the statement of the Petitioner giving explanation for the delay is against the law. Reliance was placed on a decision in Raja Himanshu Dhar Singh Vs. Additional Registrar, Co-operative Societies and Another, . The relevant portion of the judgment is quoted herein below:

Bye-law 21 of the bye-laws of the Club (hereinafter referred to as the bye-laws) reads as follows:

Ordinarily a notice of the general meeting mentioning the place, date and time of the meeting and the business to be transacted thereat shall be given to all members or delegates (when the delegate system is introduced) at least a fortnight before the date on which the meeting is to be held and in the case of annual general meetings it may also be accompanied by a copy of the annual administration report, audit certificate and balance sheet. But non-receipt of such a notice by any member or delegate (system is introduced) shall not invalidate the proceedings of the meeting.

The submission on behalf of that Petitioner has been that there is no difference between the non-receipt of a notice and a notice not being sent at all and there inasmuch as bye-law No. 21 protects the proceedings of meeting of which notice was not served though issued it should also be deemed to protect what transpired at a meeting in respect of which notices were not sent to some of the members. I am unable to agree with this contention. Bye-law No. 21 has got to be strictly construed because it affects the absolute and unqualified right of every member of the club to participate in the deliberations held in a meeting. It would be inconsistent with his right as a member to be deprived of the right of being invited to the meeting. The rule contained in bye-law No. 21 is a rule of convenience framed only in order to protect proceedings from being invalidated on grounds of mere technicalities e.g. the non-receipt of a notice, but the provision of that bye-law cannot be stretched to a case where no notice was issued at all. It cannot therefore be doubted that if the complaint of the Respondents is correct that notice to a large number of members was never issued the proceedings, of the meeting dated 15th of May, 1960, must be held to be void. It may however be stated that there is no evidence on the record on the basis of which a conclusion could be safely arrived at there was in fact no invitation for the meeting to a large number of members. It is a pure question of fact whether or not no notice was issued to some of the: members. In the runnier-affidavit there is an allegation that no notices were issued to some of the members. Inasmuch as no rejoinder-affidavit has been filed, the allegation contained in the counter affidavit remains uncontroverted.

There is, therefore, no escape from the conclusion that in fact notices were not issued to some of the members of the club. This to my mind is a defect which cannot be cured. Mr. Varma has contended that there is a finding in the award of the Assistant Registrar that the Respondents have not been able to substantiate their allegation that notices were not issued to some of the members. Even though that is so the allegations made in the counter-affidavit cannot be robbed of their full effect especially when the Petitioners has not chosen to controvert them.

The position of affidavits that of a statement on oath. Their importance is enhanced in proceedings like a writ where no parol evidence is recorded and if a party makes a definite allegation and the other party does not controvert it for summons the deponent of that affidavit for cross examination, the only conclusion at which Courts can arrive is that the allegations being uncontroverted and not challenged by cross examination must be accepted. The view that I am taking finds support from the decision of the Supreme Court in the case of Mehta Parikh and Co. Vs. Commissioner of Income Tax, Bombay, and of this Court in KANPUR STEEL CO. LTD. Vs. COMMISSIONER OF Income Tax, UTTAR PRADESH.,

The Petitioner has stated in Para 10 of the writ petition that no counter-affidavit or objection was filed against the affidavit filed by the Petitioner accompanying Section 5 application. In Para 9 of the counter-affidavit it is stated that the contents of Paras 8, 9 and 10 of the writ petition need no reply. Thus, it is admitted to the Respondents that no counter-affidavit was filed on behalf of the Respondents. Therefore, when there was no counter-affidavit, the statement made in the affidavit filed by the Petitioner along with application u/s 5 should have been accepted.

It is also significant to point out that provisions of Section 5 of Indian Limitation Act are not applicable to a time-barred appeal u/s 33 of the Act and if the period of Limitation has expired, the appeal can be entertained by the appellate authority if it is satisfied that Appellant was prevented by sufficient cause from filing the appeal. Therefore, only an explanation is to be given regarding delay and laches, application u/s 5 of Limitation Act is not required in view of the proviso to Section 33 of the Act itself. Therefore, finding of the appellate authority dismissing the application u/s 5 of Limitation Act is not correct.

The learned standing counsel has urged that a finding of facts has been recorded by the appellate authority regarding knowledge of the judgment to the Petitioner, therefore, this finding of facts cannot be set aside under Article 226 of the Constitution of India. The submission made by the learned standing counsel is not accepted in view of the fact that when there is clear provision for communication of the order under the Rules for service of the order and it is admitted to the Respondents that communication was made through registered post and it was served on 2.8.88, the period of limitation will start running from 2.8.88 and not from the date of knowledge to the counsel.

Accordingly, the writ petition is allowed. The judgment and order passed by the appellate authority dated 20.1.90 is hereby quashed and it is held that there was sufficient cause for condonation of delay and the appeal should have been decided on merit. The appellate authority is directed to restore the appeal to its original number and decide it on merit at an early date. There will be no order as to costs.