IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.01.2010 CORAM: THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.788 of 2010 C. Ramachandran ... Petitioner Vs. 1. The Commissioner, H.R. & C.E. Admn. Department, Chennai – 600 034. 2. The Executive Officer, Arulmighu Venkatesa Perumal Thirukoil, Chinna Tirupati, Salem. ... Respondents Prayer: Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus, calling for the records in R.C.No.50684/2008 D2 dated 13.10.2009, passed by the first respondent and to quash the same and consequently direst the first respondent to take the appeal on his file. For Petitioner : M/s. T. Karunakaran For Respondents : Mr. T. Chandrasekaran (Special Government Pleader) For H.R. & C.E. Order The challenge is to the order passed by the first respondent dated 13.10.2009 in and by which the petitioners appeal petition filed under Section 69 (1) of the HR & CE Act 22 of 1959 was dismissed on the ground of delay. According to the petitioner he had filed an original application before the Joint Commissioner, H.R.&C.E., Salem under Section 63(e) of the Act in O.A.No.20 of2004 claiming first respect, which according to the petitioner was given to his ancestors till October 2004. The Joint Commissioner passed an order dated 19.06.2007 and the petitioner appears to be not fully satisfied with the relief granted. 2. According to the petitioner the original application was presented through his counsel and the petitioner was not informed about the order passed by the Joint Commissioner, and therefore, he could not proceed further in the matter. After filing the copy application dated 12.03.2008 before the Joint Commissioner for issuance of copy of the order dated 19.06.2007, the copy was https://hcservices.ecourts.gov.in/hcservices/ furnished to the petitioner on 26.03.2008 and on the receipt of the copy of the said order, the petitioner filed the appeal petition before the first respondent during August 2008. Along with appeal petition a petition for condonation of delay was filed under Section 5 of the Limitation Act. 3. In the affidavit filed in support of the condone delay application the petitioner has stated certain reasons for not filing the appeal on time. By the impugned order the first respondent has disbelieved the reasons assigned by the petitioner and also came to conclusion that the medical certificate dated 28.03.2008 produced has no valid reason and therefore, the certificate cannot be stated to be a sufficient cause which prevented him from the filing of the appeal petition on time. 4. I have considered the contentions of the learned counsel for the petitioner as well as the learned standing counsel for the department. In any event the right conferred under Section 69 (1) of the HR & CE Act 22 of 1959 is a very valuable right and in my view the same cannot be defeated on technical grounds. However under Section 69(1) though a period of 60 days have been prescribed for filing of the appeal petition against an order on receipt thereof by aggrieved person, such appeal could be entertained by the commissioner. It is to be noted that provisions of Section 5 of the Limitation Act has not been specifically excluded.. If that be the case this Court could go into the aspect as pleaded, whether sufficient cause has been made out for not being able to file the appeal on time. 5. From the facts as stated in the affidavit it is a categorical assertion of the petitioner that the order dated 19.06.2007 was not brought to the petitioners knowledge and only after he came to know he filed appeal. It is thereafter he fell sick and was advised bed rest, which prevented the petitioner from preferring the appeal immediately on receipt of the certificate copy of the order. Therefore it is to be noted that the medical certificate is to only support the case of the petitioner that he has been indisposed after 28.03.2008. In respect of the earlier period the petitioner has stated that he was not communicated with the order which has not been disputed and no record has been placed before the first respondent, to show that the order was served on the petitioner after 19.06.2007. In such circumstances, it has to be taken that the date for receipt of the copy of the order i.e., 26.03.2008 shall be taken as the date of service of the order. If that be the case, the cause shown by the petitioner for not preferring the appeal in time would be sufficient to condone the delay, that apart the petitioner seeks to establish some customary right and in my view this issue has to be adjudicated on its merits. 6. Considering the facts and circumstances of the case, I am of the considered view that the delay in filing the appeal deserves to be condoned. Accordingly, the impugned order dated https://hcservices.ecourts.gov.in/hcservices/ 13.10.2009 is set aside. The delay in filing the appal under Section 69(1) of the Act is condoned and the matter is remitted back to the first respondent to decide the case on merits and in accordance with law, within a period of three months from the date of receipt of a copy of this order. 7. With the above directions the writ petition is allowed. No. Costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar prm To 1. The Commissioner, H.R. & C.E. Admn. Department, Chennai – 600 034. 2. The Executive Officer, Arulmighu Venkatesa Perumal Thirukoil, Chinna Tirupati, Salem. + 1 cc to Mr.T.Karunakaran,Advocate,SR.3447 + 1 cc to Government Pleader,SR.3289 W.P.No.788 of 2010 NSM(CO) EM/28.1.10 https://hcservices.ecourts.gov.in/hcservices/