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2016 DIGILAW 197 (UTT)

Nisar Jahan @ Nishar Jahan v. Kishwar Jahan

2016-05-05

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioner seeks writ in the nature of certiorari quashing the order dated 05.04.2016, passed by Civil Judge (Sr. Div.), Dehradun in Misc. Case no. 123 of 2014, Smt. Kishwar Jahan vs. Nagar Nigam and others, whereby the application (paper no. 9C2) for condonation of delay under Section 5 of the Limitation Act filed by respondent no. 1/appellant has been allowed. 2. The genesis of present writ petition is traceable from the fact that respondent no. 1/appellant preferred a time barred appeal against the order dated 26.12.2013, passed by Nagar Nigam, Dehradun, whereby the name of respondent no. 1 was mutated. The said appeal was preferred along with delay condonation application (paper no. 9C2), which was registered as misc. case no. 123 of 2014, Kishwar Jahan vs Nagar Nigam and others, wherein it was stated that respondent no. 1 for the very first time came to know of order dated 26.12.2013 on 24.01.2014. The reasons stated in the application are that she had no knowledge of the order dated 26.12.2013 till 24.01.2014, whereby the name of the respondent no. 1 was mutated. It was further stated in her application that thereafter she was unwell and seriously ill. The petitioner filed her detailed objections to the application for condonation of delay. Petitioner in her objections stated that the respondent no. 1 was herself present before the Executive Committee of Nagar Nigam when the order dated 26.12.2013 was passed. The fact about her presence there on 26.12.2013 is specifically mentioned in the order itself and the Executive Committee of Nagar Nigam passed the said order on 26.12.2013 after hearing both the parties. 3. It is the submission of learned counsel for the petitioner that the trial court has passed the impugned order without considering the relevant provisions of law, while passing said order. Learned counsel also contended that the grounds taken in delay condonation application are incomprehensible. After the knowledge of the impugned order dated 26.12.2013, the prescribed appeal time as per Nagar Nigam Adhiniyam being 15 days, has to be preferred on or before 10.01.2014, and the medical prescription stated that the respondent no. 1 was unwell from 24.01.2014 to 25.03.2014, meaning thereby that respondent no. After the knowledge of the impugned order dated 26.12.2013, the prescribed appeal time as per Nagar Nigam Adhiniyam being 15 days, has to be preferred on or before 10.01.2014, and the medical prescription stated that the respondent no. 1 was unwell from 24.01.2014 to 25.03.2014, meaning thereby that respondent no. 1 was admittedly fit and fine between the period 26.12.2013 till 23.01.2014 to file the appeal but the same was not done, i.e., during the period of limitation and allegedly fell ill about 15 days after the expiry of period of limitation as per law. Learned court below, after considering the facts brought before it, condoned the delay in filing the appeal on payment of Rs. 1,500/- as cost. Learned court below has given adequate reasons for condoning such delay. 4. Sub-section (2) of Section 472 of the U.P. Municipal Corporations Act, 1959, reads as under: “No such appeal shall be heard unless – (a) it is brought within fifteen days after the accrual of the cause of complaint; (b) in the case of an appeal against an annual value an objection has previously been made and has been disposed of under Section 209; (c) in the case of an appeal against any tax in respect of which provision exists under this Act for an objection to be made to the [Municipal Commissioner] against the demand, such objection has previously been made and disposed of; (d) in the case of an appeal against any amendment or alteration made in the assessment list for property taxes under sub-section (1) of Section 213, an objection has been made in pursuance of a notice issued under the proviso to the said sub-section and such objection has been disposed of; (e) in the case of an appeal against a tax, or in the case of an appeal made against an annual value after a bill for any property tax assessed upon such value has been presented to the appellant, the amount claimed from the appellant has been deposited by him with the Municipal Commissioner.” 5. It is true that Section 472 of the U.P. Municipal Corporations Act, 1959, provides for 15 days time for filing the appeal, but at the same time, it will also be useful to reproduce here-in-below, sub-section (2) of Section 29 of the Limitation Act in the wake of present controversy as below: “29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in section 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.” 6. Thus, an application under Section 5 of Limitation Act could be filed in a proceeding under the U.P. Municipal Corporations Act, 1959 (as applicable in the State of Uttarakhand). 7. Learned counsel for the petitioner drew attention of this Court towards paragraph 4 and 5 of the judgment rendered by Hon’ble Apex Court in P.K. Ramachandran vs State of Kerala and another, 1998 AIR SCW 2177. The facts of present case are distinguishable from the case of P.K. Ramachandran (supra), inasmuch as, it was a specific case of the appellant (respondent no. 1 herein), before the trial court, that she fell ill and, therefore, could not pursue the remedy of appeal in time. The court below being satisfied with the reasons thus furnished in support thereof condoned the application under Section 5 of the Limitation Act. This Court has no reason to take a view different from the one taken by the court below. 8. The writ petition fails and the same is dismissed at the admission stage itself. [Stay application no. 4201 of 2016 also stands disposed of.]