SHANTARAM VISHNU KASHALKAR v. D J ALLAHABAD — 1997 DIGILAW 483 (ALL)

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. 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. 3. 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 immedi ately applied for a certified copy of the aforesaid judgment on 6-8-88 and the same was delivered on 22-12-88. " 4. The reply given by the State in the counter-affidavit is as 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. " 5. 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 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. " 6. 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 under Section 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. He 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 rakash v. State of U. P. through Collector, Shaharanpur and others, reported in 1989 A. W. C. page 1496. 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 rakash v. State of U. P. through Collector, Shaharanpur and others, reported in 1989 A. W. C. page 1496. The relevant portion of the judgment is quoted herein under: "the expression "communication" has not been defined statutorily. In case on 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 Diction ary defines word "communicate" as follows: to make known, inform a person, to 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 communi cate an idea or feeling, it means to make them aware of it. Communication is the activity or process of giving information to other people. " According to Readers Digest Great En cyclopaedic Dictionary, the word communication means imparting news, information given. The aforesaid meaning of word communicate may be. applied as required by Sec tion 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. " 7. 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 communi cated to the person concerned and mere 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. 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 petitioners 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 coun sel 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 controvert the allega tions 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 find ing 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 v. Additional Registrar Co- operative Societies, Uttar Pradesh and another, 1962 AIR Al lahabad page 439. 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 meet ing 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 meet ing. But non-receipt of such a notice by any member or delegate (system is introduced) shall not invalidate the proceedings of the meet ing. " "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 that 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 un qualified 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 can not 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 that 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 counter-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 uncontroversial. "there is therefore no escape from the con clusion 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. Inasmuch as no rejoinder affidavit has been filed, the allegation contained in the counter-affidavit remains uncontroversial. "there is therefore no escape from the con clusion 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 petitioner has not chosen to controvert them. "the position of affidavits that of a state ment on oath. Their importance is enhanced in proceedings like a writ where no parole 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 uncon troverted 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. v. Commr. of Income Tax, (1956) 30itr 181 (S) AIR 1956 SC 554 and of this Court in Kanpur Steel Co. Ltd. v. Commissioner of Income Tax, (1957) 32 ITR 56 (Alld. ). " 8. 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 Sec tion 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 respon dents. That so counter-affidavit was filed on behalf of the respondents. Therefore, when there was no counter-affidavit, the state ment made in the affidavit filed by the petitioner along with application under Sec tion 5 should have been accepted. 9. Thus it is admitted to the respon dents. That so counter-affidavit was filed on behalf of the respondents. Therefore, when there was no counter-affidavit, the state ment made in the affidavit filed by the petitioner along with application under Sec tion 5 should have been accepted. 9. It is also significant to point out that provisions of Section 5 of Indian Limitation Act are not applicable to a time barred ap peal under Section 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 that appellant was prevented by sufficient cause from filing the appeal. Therefore, only an explanation is to be given regarding delay and latches, application under Section 5 of Limitation Act is not required in view of the proviso to Section 33 of the Act itself. Therefore, find ing of the appellate authority dismissing the application under Section 5 of Limitation Act is not correct. 10. The learned Standing counsel has urged that a finding of facts has been recorded by the appellate authority regard ing knowledge of the judgment to the petitioner, therefore, this finding of facts cannot be set aside under Article 226 of the CConstitution of India. The submission made by the learned Standing counsel is not ac cepted in view of the fact that when there is t 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. 11. 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. Petition allowed. .