—p iSLE BENC^ k IN THE HIGH COURT OF CHHATOSGARH AT BILASPUR ^ WRIT PETITION (227) N0, IN THE MAHER OF: PETITIONER/ APPELIANT .^^^N.S'S3-^'"1 ..i';s;3'c' <«" /2010 /• Abdul Gaffar, S/o Mohd. Safi, Aged about^years, R/o Industrial Ward, P.0. -Dhamtari, District- Dhamtari (C.G.) VERSUS RESPONDENTS N0.1/ RESPONDENT N0.1 RESPONDENT N0.2/ RESPONDENT N0. 2 ^ The Estate Officer, South East Railway Management Compound, W.R.S. Colony, Raipur, Chhattisgarh Union of India, Through Chief Manager, South East Railway, Garden Reach, Kolkata, West Bengal, WRIT PETITION UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA TO ~s^^s^i& 'fiBBIJSS *^^&;1§ ^^K^ HIGH COURT OF CHHATTISGARH : BILASPUR SINGLEBENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. <2."-r) Writ Petition (Sf No. 2101/2010 PETITIONER RESPONDENTS Abdul Gaffar Versus The Estate Officer, S.E.C.L. another 8s Writ Petition u/A 227 of the Constitution of India A&pearance: Mr. Ankit Singhal, counsel for the petitioner. Ms. Naushina Ali, Advocate appears, on advance copy, on behalf of Mr. Amit Choudhari, Standing Counsel for the respondents. ORAL-ORDER (Passedon 6.5.2010) 1. By this petition, under Article 227 of the constitution of India, petitioner has assailed legality and validity of order dated 18/03/2010 (Annexure P-1) by which the petitioner's appeal under Section 9 of the Public Premises (Eviction of unauthorized occupants) Act, 1971 (for short " the Act of 1971"} has been dismissed as barred by limitation. 2. Leamed counsel for the petitioner makes two fold submissions. The first submission of learned counsel for the petitioner is that in view of the provisions contained under Section 9, Sub-Section 2(a), the period - of limitation is to be reckoned froni the date of publication of the order under Sub-Section 1 of Section 5 of the Act of 1971. It is submitted ; that though the order was passed by the Estate Officer on 22/08/08, the same was affixed as required by Section 5 of Sub-Section 1, only on 8/09/08. He therefore submits that the period of limitation would -2- cominence only frorn 8/09/08 and not before that. It is submitted that the appeal was initially filed on 12/09/08 before fhe District Judge, Raipur but later on District Judge, Raipur, retumed the appeal with liberty to file the same before the District Judge, Dhamtari whereafter the appeal was presented on 24/09/08 before the District Judge, Dhamtari. The second submission of learned counsel for the petitioner fhough assuming that there was delay in filing the appeal, as the petitioner had also moved an application under Section 5 of the Limitation Act, 1963, by way of abundant caution, learned Court below was obliged to consider the same. 3. Learned counsel for the petftioner has also relied upon the judgruent of Allahabad High Court in the case of Parma Nand Singh Vs. District Judge, Mirzapur and others, AIR 1988,264. 4. Submission of leamed counsel for the respondent is that the perusal of impugned order would show that the District Judge, Raipur returned the appeal on 23/08/09 whereafter the appeal was filed before the learned Court below after delay of 20 days and therefore appeal was not filed within the period of limitation prescribed under the law. It is submitted that the finding of the learned Court below that the appeal was barred by limitation does not suffer from any error much less an error apparent on the record and therefore the petition is liable to be dismissed. 5. A perusal of impugned order shows that while considering as to -whether the appeal was filed within the period of limitation or not, learned Court below has completely misdirected itself. A bare perusal of Section 9 of Sub-Section 2(a) shows that the appeal is required to be filed within 12 days froin the date of publication of the order under ^nsiMey^ fsf^ 'tas8!-;.. ^VffSa ?' Praveen Sub-Section 1 of Section 5. However, in the entire order, the learned Court below while considering the case of the petitioner has coraputed the period of limitation from fhe date of passing of the order without taking into consideration the statutory provisions contained in Section 9 of Sub-Section 2 (a) of the Act, 1971. 6. The facts of the case are that initially the appeal was filed before the District Judge, Raipur. Later on.fhe same was returned and presented before the Court below. This aspect was not taken into consideration. Moreover, it appears that the petitioner, by way of abundant caution, had nioved an application under Section 5 of the Limitation Act for condonation of delay, if any, in filing the appeal. Though the impugned order records that the appeal is barred by limitation, there is no consideration of petitioner's application for condonation of delay. The order does not reflect that any of the grounds raised by the petitioner in the application for condonation of delay were considered. The order does not show that any satisfaction has been recorded that the cause shown for delay is not sufficient. 7. In view of the above discussion, the impugned order cannot be sustained and the same is therefore set aside. Leamed Court below shall reconsider the entire matter afresh, by taking into consideradon the stata-itory provisions contained in Section 9 of Sub-Section 2 (a) of the Act and pass appropriate orders in accordance with law. Parties shall appear before the Additional District Judge (F.T.C.), Dhamtari on 14th May, 2010. — "'"—- ;, Sd/- Manindra Mohan Shrivastava Judge