State of U.P. and Another vs District Judge and Another

S.P. Srivastava, J.—Feeling aggrieved by an order disposing of an appeal filed by the Respondent No. 2 u/s 33 of the Urban Land (Ceiling and Regulation) Act, 1976 whereunder setting aside an order dated 24.2.82 passed by the competent authority the matter had been remanded for hearing afresh in accordance with law in the light of the observations made in the body of the judgment, the Petitioner has now approached this Court seeking redress praying for the quashing of the aforesaid order.

The appellate authority had passed the aforesaid order on 16.10.95. The Petitioner moved an application for supplying the certified copy of the said order on 24.2.96. The said copy was shown to be ready for delivery on 29.2.96 and was received by the Petitioner on 1.3.96. The present writ petition, however, was presented for reporting before the Stamp Report of the Court on 5.4.96. and returned back to the Petitioner on the same day after reporting. The writ petition was thereafter filed on 8.4.96 in the Registry of this Court. The Stamp Reporter in his report has pointed out that the petition ought to have been filed on 14.1.96. The presentation of the writ petition in the registry of this Court is obviously belated.

An explanation for the belated presentation of the writ petition has been furnished by the Petitioner asserting that after the receipt of the certified copy of the judgment vide letter dated 29.12.95, the matter was referred to the Secretary, Housing, U.P. Shasan, Lucknow for taking necessary action but the Secretary, Housing wrote a letter to the Law Secretary for permission to file the writ petition and the Joint Legal Remembrancer granted the sanction on 31.1.96. It is claimed that the letter granting permission to file the writ petition was received by the Collector, Varanasi on 9.2.96 and thereafter the Assistant Engineer, Urban Land Ceiling, Varanasi was sent to Allahabad who reached there on 20.2.96 but since the papers were not complete the Standing Counsel vide his letter dated 14.3.96 asked for the wanting papers who were supplied on 25.3.96.

From the facts noticed herein above, it is clear that although the judgment passed by the appellate authority had been delivered on 16.10.95, its certified copy was not obtained immediately and an application for the purpose was filed quite belatedly on 24.2.96, that is to say after more than four months. The Petitioner has not filed the copies of the correspondence relied upon in support of the explanation for the belated presentation of the writ petition. The explanation furnished points out to the lethargic and leisurely manner in which the matter in regard to the filing of the writ petition was being pursued by the Petitioner. The explanation furnished reflects a bureaucratic passing of the buck-ethos. The matter does not rest here. According to the Petitioner the sanction of the legal remembrancer had been received by the Collector, Varanasi on 9.2.96 but the Assistant Engineer who has filed his affidavit in support of the writ petition was sent for filing a writ petition on 20.2.96. The matter again was put in a cold storage in the office of the Standing Counsel. Although the only document annexed with the writ petition besides the certified copy of the impugned judgment are the copy of gazette notification u/s 10(3) of the Act dated 7.12.85 and copy of the certificate dated 19.3.86 showing that possession of the land declared surplus had been taken over on the said date and the memo of appeal filed by the Respondent No. 2, the Standing Counsel could draft the writ petition and present it for reporting only on 5.4.96. It was thereafter presented in the registry on 8.4.96.

It should not go unnoticed that the Petitioner wile approaching the equity court invoking the jurisdiction envisaged under Article 226 of the Constitution of India should act with utmost diligence and despatch. The Petitioner with all the facilities at its command and the Chief Standing Counsel representing it do not appear to have acted at diligently in approaching this Court. This Petitioner, therefore, does not deserve any sympathy and the writ petition is liable to be thrown out on the aforesaid ground but considering the facts and circumstances of the present case and the questions of law involved therein this writ petition is being entertained and the learned Standing Counsel representing the Petitioners has been heard.

It has been strenuously urged by the learned Counsel for the Petitioner that the appellate authority had exceeded the Jurisdiction vesting in it as envisaged u/s 33 of the Act by entertaining the appeal filed by the Respondent No. 2 in the year 1994 against the order of the Prescribed Authority dated 24.8.82 even though such an appeal could be entertained within thirty days of the date on which the order appealed against is communicated to the Appellant. What has been urged is that in the present case, subsequent to the passing of the order dated 24.8.82 declaring an area of 62887.14 square metres of Petitioner''s land as surplus, a notification u/s 10(1) of the Act had been published on 31.8.85 and another notification u/s 10(3) had been published on 7.12.86 and possession of the land declared surplus had been taken over from the Respondent No. 2 on 19.3.86 which obviously indicated that the Respondent No. 2 had to be imputed with the contents of the final statement envisaged u/s 9 of the Act determining the extent of vacant land held by the said Respondent. According to the learned Counsel for the Petitioner, the Respondent No. 2 ought to be imputed with the knowledge of the contents of the final statement envisaged u/s 9 of the Act determining the extent of the vacant land held by him to be surplus. The submission of the learned Counsel for the Petitioner proceeds on the assumption that the gazette notification envisaged u/s 10(1) of the Act and Section 10(3) of the Act had the necessary effect of imputing the Respondent No. 2 with the knowledge of the order passed by the Prescribed Authority dated 24.8.82 and in any case, at least on 19.3.86, when the possession of the land declared as surplus had been taken over from the Respondent No. 2, he ought to have come to know about the extent of the area of the vacant land in his possession which had been declared surplus.

According to the learned Counsel for the Petitioner in the aforesaid circumstances, the starting point for computing the period of limitation for filing the appeal in the present case had to be either the date of the publication of the gazette notification dated 31.8.85 or 7.12.85 or by the latest 19.3.86 and since computing the limitation of thirty days taking any of the aforesaid dates as furnishing the starting point for the same, the appeal filed in the year 1994 could not be deemed to be within time. The appellate authority, therefore, it is urged clearly exceeded in its Jurisdiction in entertaining the same and deciding it on merits.

It has further been urged that the Respondent No. 2 had not filed any application seeking condonation of delay in filing the appeal and had not sought for any condonation of delay in filing the same. What has been urged is that ex facie the appeal filed in the year 1994 challenging the order dated 28.2.82 had been presented much beyond the prescribed period of limitation ought to have been rejected outright specially when there was neither any application nor any prayer for condoning the delay in filing the same. In connection with the above, it has further been urged that the appellate authority has acted with manifest illegality in treating the appeal to have been filed within the time prescribed and even in the absence of the application seeking condonation of delay, has erred in alternatively condoning the delay in filing the same.

I have given my anxious consideration to the aforesaid submissions and have carefully perused the materials on the record.

In his memo of appeal dated 8.11.94, the Respondent No. 2 had appended a note that since the order dated 24.8.82 which had been appealed against had never been communicated to the Appellant and even the notice contemplated u/s 9 of the Act had not been received by him, his appeal was being filed within the period of limitation prescribed. It appears that in view of the note of the Appellant appended to his memo of appeal dated 8.11.94, the appellate authority had summoned the original record of the case and had perused the same. On the examination of the entire record, the appellate authority had come to the conclusion that no notice either as contemplated u/s 8(3) of the Act or the notice contemplated u/s 9 of the Act had ever been served on the Appellant. The appellate authority has observed that no notice had been sent to the Appellant even by registered post. In the aforesaid view of the matter, the appellate authority came to the conclusion that the appeal filed by the Appellant could not be deemed to have been filed beyond the prescribed period of limitation and in any case even if there was some delay, that was liable to be condoned in view of the failure of the prescribed authority to serve the notices meaning thereby that it had failed to comply with the mandatory requirement of law.

The provision contained in Section 33 of the Act is to the following effect:

Appeal--(1) 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 (hereinafter 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.

(2) On receipt of an appeal under Sub-section (1), the appellate authority shall, after giving the Appellant an opportunity of being heard, pass such orders thereon as it deems fit as expeditiously as possible.

(3) Every order passed by the appellate authority under this section shall be final.

The provisions contained in Section 33 of the Ac: as indicated above provide for a statutory right of appeal in favour of any person aggrieved by an order made by the competent authority under the Act not being an order u/s 11 or an order under Sub-section (1) of Section 30. Tills statutory right of appeal has to be exercised within thirty days of the date on which the order appealed against is communicated to the Appellant. It is also provided that the appellate authority could entertain the appeal even after the expiry of the said period of 30 days if it is satisfied that the Appellant was prevented by sufficient cause from filing the appeal in time.

The provisions contained in Section 6 of the Act require that every person holding vacant land in excess of the ceiling limit at the commencement of the Act shall within such period as may be prescribed file a statement before competent authority specifying the location, extent, value and such other particulars as may be prescribed, of all vacant lands and of any other land on which there is a building whether or not with a dwelling unit therein held by him including (the nature of his right, title or interest) therein and also specifying the vacant lands within the ceiling limits which he desires to retain.

Sub-section (2) of Section 6 of the Act empowers the competent authority to serve a notice upon any person holding in its opinion vacant land in excess of the ceiling limit requiring such person to file within such period as may be specified in the notice the statement referred to in Sub-section (1). The provisions contained in Section 8 of the Act require that the draft statement in regard to the surplus land shall be served in such manner as may be prescribed on the person concerned together with a notice stating that any objection to the draft statement shall be preferred within thirty days of the service thereof.

The provisions contained in Rule 5 of the Urban Land (Ceiling and Regulation) Rules, 1976 framed under the Act require that every draft statement prepared under Sub-section (1) of Section 8 shall be served together with the notice referred to in Sub-section (3) of Section 8 on the holder of the vacant land and all other persons so far as may be known who have or likely to have any claim to or interest in the ownership or possession or both of the vacant lands by sending the same by registered post addressed to the person concerned, in the case of holder of the vacant lands to his address as given in the statement filed in pursuance of Sub-section (1) of Section 6 and in the case of other persons, at their last known addresses and where the draft statement and the notices are returned as refused by the addressee, the same shall be deemed to have been duly served on such person.

It is also provided under the said rule that where the efforts to serve the draft statement and the notices on the holder of the vacant lands or as the case may be any other person as contemplated under that rule in the manner specified is not successful for reasons other than the reason of refusal as indicated hereinbefore, the draft statement and notice shall be served by fixing copy of the same in a conspicuous place in the office of the competent authority and also upon some conspicuous part of the house (if any) in which the holder of the vacant lands or as the case may be the other person is known to have last resided or carried on business or personally worked for gain.

The same procedure as indicated above stands prescribed for service of the final statement contemplated u/s 9 of the Act.

As already noticed hereinabove, the provisions contained in Section 33 of the Act provide for a starting point for computing the thirty days period of limitation for filing an appeal which has to be the date of communication of the order sought to be appealed against.

In the present case, the Respondent No. 2 felt aggrieved by an order passed by the competent authority declaring an area of 62887.14 square metres of the land held by the Respondent No. 2 to be surplus vacant land. The order which was the subject-matter of the appeal was, therefore, an order determining the extent of vacant land held by the Respondent No. 2 as envisaged u/s 9 of the Act. An aggrieved person could not be imputed with the knowledge of the contents of an order determining the extent of the surplus vacant land unless that order had been communicated to him in the manner prescribed u/s 9 of the Act which stands specifically provided for under Rule 5 of the Urban Land (Ceiling and Regulation) Rules, 1976.

The statute and the rules framed thereunder cast a duty on the competent authority to adopt and take recourse to a particular specified made of service of a notice or an order. The statutory duty cast upon the authority concerned cannot be deemed to have been discharged merely on the ground that the purpose of the notice is served in case the person concerned obtained the knowledge of the order or proceeding in any other way. In this connection, it may be observed that it is not the knowledge of the extent of the surplus area of vacant land which can be taken to be enough for the purpose of an appeal contemplated u/s 33 of the Act. The expression "the date on which the order is communicated" as used in Section 33 of the Act is quite significant. The order contemplated therein cannot and ought not be treated to be synonymous with the conclusion or result of the determination of the vacant land held by the person concerned in excess of the ceiling limit as envisaged u/s 8(4) and Section 9 of the Act. It seems to me that the expression ''order'' as used in Section 33 of the Act refers to an order as a whole including the reasonings contained therein or disclosing the basis of the conclusion reached by the competent authority as indicated in the operative portion of the order.

Any other interpretation will lead to wholly uncalled for results. An Appellant has to be in a position to set forth his grievance against the order which is sought to be challenged before the appellate authority. All questions of law and fact are open for being canvassed before the appellate authority. An Appellant cannot prepare his appeal in an effective manner unless he knows the reasonings of the competent authority on which it had proceeded for arriving at its conclusions. The Appellant must not be left in lurch and must be able to know from the order how his case and objection preferred by him have been dealt with and considered by the competent authority so that he may agitate his claim before the appellate authority in case it has been negatived by the competent authority. For this, the reasons for the order must be set out in the order communicated to the Appellant. This, It seems to me, is a mandatory requirement of law as provided for u/s 33 of the Act. In the aforesaid view of the matter, unless the order in its entirety determining the extent of the surplus area of vacant land held by the person concerned is communicated to such a person, the period of limitation prescribed u/s 33 of the Act cannot be deemed to have started to run.

It may further be noticed that the statutory remedy provided for an appeal against an order passed by the competent authority u/s 9 of the Act has not been made conditional on the publication or non-publication of the notification u/s 10 of the Act. This right of appeal secured under the provisions of the Act, the starting point for computing the limitation prescribed wherefore has been fixed to be the date of communication of the order appealed against, cannot be deemed to have been defeated or curtailed or period of limitation reduced by the publication of the notification as claimed treating the date of communication of the order to be the date of the publication of the notification envisaged u/s 10 of the Act.

There may be a situation where the appellate authority refuses to grant any interim order and in the absence of any interim order, a notification u/s 10 of the Act is published. The date of the publication of the notification cannot give rise to a fresh starting point of limitation for the purpose of the appeal or render the appeal infructuous. More so when on the success of the appeal, these notifications have to automatically fall when the order passed by the competent authority is set aside or varied.

In the aforesaid circumstances, taking into consideration the scheme underlying the Act, I am of the considered opinion that the date of publication of Notification u/s 10 or the date of delivery of possession cannot be deemed to furnish the starting point for computing the period of limitation prescribed u/s 33 of the Act.

In the present case, the Petitioner has not been able to demonstrate that the observations made by the appellate authority to the effect that the Respondent No. 2 had never been served with any notice either u/s 8 or 9 of the Act and the order appealed against had never been communicated to the Appellant, were in any manner incorrect or the finding to this effect is not based on the evidence and the materials on the record. In face of such findings which have not been shown to be vitiated in law in any manner, the appeal filed by the Respondent No. 2 could not be thrown out on the ground that it had been filed beyond the prescribed period of limitation, as claimed by the Petitioner. The submissions of the learned Counsel for the Petitioner in this connection are devoid of merits and are not at all acceptable.

So far as the submission In regard to the non-filing of an application seeking condonation of delay in filing the appeal is concerned, suffice it to say that in view of the note appended by the Appellant in the memo of appeal, it is apparent that the Appellant had filed the appeal asserting that it was being filed within the time prescribed under the provisions contained in Section 33 of the Act. In view of such a claim, there could be no occasion for the Appellant to file an application seeking condonation of delay in filing the appeal seeking benefit of the proviso to Section 33(1) of the Act.

The provisions contained in Section 42 of the Act specifically provide that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or any custom, usage or agreement or decree or order of a court, Tribunal or other authority. In face of such a provision, there could be no occasion for attracting the provisions contained in the Indian Limitation Act. The proviso to Section 33(1) of the Act does not contemplate moving of a separate application seeking condonation of delay in filing the appeal. There may be a case where the Appellant has to rely upon certain facts which come into existence subsequent to the passing of the order appealed against or after its due communication to him in order to explain sufficiently the delay in the presentation of the appeal. However, when the Appellant chooses to rely upon the evidence and the materials already on the record of the competent authority in order to demonstrate that the appeal preferred by him is in fact within time when presented, there could be no occasion for filing an application seeking condonation of delay in moving the appeal.

In any case, once the appellate authority on the evidence and the materials already on the record comes to the conclusion that the appeal could not be treated to have been presented beyond the prescribed period of time and further even if it was to be assumed to be so, the facts and circumstances brought out upon the evidence and the materials already on record of the competent authority Justified the condonation of delay in filing the appeal or its entertainment, there could be no justification for omitting to consider these aspects insisting upon the filing of an application seeking condonation of delay in entertaining the appeal, especially when no further facts apart from those already borne out from the evidence and materials on the record of the competent authority, were sought to be relied upon. If sufficient ground was made out on the aforesaid material, the delay, if any, could nonetheless be condoned, even in the absence of an application.

Considering the facts and circumstances brought on record and my conclusions indicated hereinabove, this Court finds absolutely no justification for the intervention of equity while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India.

The writ petition is accordingly, dismissed in limine.