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2016 DIGILAW 604 (UTT)

Cantonment Board Nainital v. Veera Chaudhary

2016-09-21

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. The petitioner is Cantonment Board, Nainital, aggrieved by the order dated 30.06.2016 passed by learned IInd Additional District Judge, Nainital in Eviction Appeal No. 6 of 2016, Veera Chaudhary Vs Cantonment Board, Nainital, which was filed by the appellant (present respondents) under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (from hereinafter referred to as ‘Public Premises Act’) against the order of the Prescribed Authority i.e. Estate Officer, Cantonment Board dated 09.05.2016. By the said order, learned IInd Additional District Judge, Nainital stayed the operation and effect of the eviction order dated 09.05.2016 of the respondents and the appeal was admitted. Aggrieved by the said order, Cantonment Board has filed the present writ petition before this Court. 2. The case of the petitioner before this Court is that the appellate authority i.e. the learned IInd Additional District Judge, Nainital should not have entertained the appeal, as it was filed beyond time and appellant (present respondents) had not even filed a delay condonation application along with appeal in view of Section 9(2) of the Public Premises Act, 1971, which reads as under:- “9. Appeal – (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under section 5 or section 5B or section 5C or Section 7 to an appellate officer who shall be the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years’ standing as the district judge may designate in this behalf. (2) An appeal under sub-section (1) shall be preferred- (a) in the case of an appeal from an order under section 5 within twelve days from the date of publication of the order under sub-section (1) of that section; (b) in the case of an appeal from an order under section 5B or section 7, within twelve days from the date on which the order is communicated to the appellant; and (c) in the case of an appeal from an order under section 5C, within twelve days from the date of such order: Provided that the appellate officer may entertain the appeal after the expiry of the said period, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.” 3. The order of the Prescribed Authority is dated 09.05.2016, which was served on the respondent on 18.05.2016, and the period of limitation is 12 days which comes to an end on 30.05.2016. The application was filed on 06.06.2016. 4. Learned counsel for the respondents Mr. Siddartha Singh, on the other hand, would argue that there was no occasion to file a delay condonation application along with the appeal and it cannot be said that the appeal was beyond the period of limitation, inasmuch as the date of limitation starts from the date of publication of the order, as provided under sub section (2) of Section 9 of the Public Premises Act and admittedly this order has never been published. Therefore, it cannot be said that twelve days time have come to an end on the date of filing of the appeal i.e., 06.06.2016 in view of Section 9(2) of the Public Premises Act. 5. Learned counsel for the petitioner on the other hand would argue that the period of appeal would be calculated from the date of service. In this case, on 09.05.2016, the order was passed by Estate Officer and served the same to the Manager, who was in-charge and controller of the hotel premises, on 18.05.2016 itself. Therefore, the period of limitation would come to an end on 30.05.2016 and appeal was admittedly filed by the respondents on 06.06.2016. Therefore, the question of maintainability is being raised by the petitioner. 6. The contention of private respondent is that limitation will start from the date of “publication” and admittedly the publication has not been done in this case. This issue, in any case, is left open to the lower appellate court. Let the lower appellate court frame all the relevant issues, including the issue pertaining to the maintainability of appeal. This Court has not expressed any final opinion on the subject. 7. Since the possession has already been taken by the Cantonment Board of the premises in question, so far as the possession is concerned, it shall remain with the present petitioner till the decision is taken by the lower appellate authority. The Cantonment Board shall not make any alteration of the property nor remove the property or goods of the respondents from the premises till the final decision is taken by the lower appellate authority. 8. The Cantonment Board shall not make any alteration of the property nor remove the property or goods of the respondents from the premises till the final decision is taken by the lower appellate authority. 8. Having made the above determination, it is, however, made clear that no opinion has been expressed by this Court regarding the limitation whether the appeal has been filed within twelve days from the date of publication is prima facie view of this Court only for the disposal of the present writ petition. However, the lower appellate court will be at liberty to frame relevant issues and decide the same on its own merit, as expeditiously as possible, in accordance with law. 9. With the aforesaid observation, the writ petition stands disposed.