S. Abdul Rasheed and Another vs The Chief Officer, Town Municipal Council and Another

These two writ petitions arising out of the common order made by the learned District Judge, Shimoga District, Shimoga, in Miscellaneous Appeals Nos. 18/1979 and 19/1979 disposed of on 22-2-1985, may be heard and disposed of by a common order. Hence, I propose to dispose of the same by the following common order:

In these writ petitions the short question that arises for consideration is,

Whether an appeal filed against an order passed under Section 5 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974, is maintainable eventhough there is a delay of 1 or 2 days and whether the intervening Sunday could be excluded for purposes of reckoning the period of Limitation. My answer is in the negative for the reasons stated hereunder:

The matter arises in this way:

Sri Umapathiappa son of Rudrappa and Sri S. Abdul Rasheed son of Sri Rahim Saheb, petitioners in these writ petitions, were found to be in occupation of the premises under the control of the Town Municipal Council, Kumsi. Action was taken to evict these persons from the premises invoking Section 5 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (hereinafter referred to as the ''Act''). The Chief Officer issued notice to the petitioners/occupants and subsequently passed an order on 20-2-1979 seeking to evict them from the premises in question. As against the said order two appeals (Misc. Appeals Nos. 18 and 19/1979) came to be presented before the learned District Judge, Shimoga District, Shimoga, who, by his order dated on 2-2-1985, dismissed both the appeals on the ground that the appeals were barred by time.

With regard to question of delay in filing the appeals, the learned District Judge, held in paragraph 7 of his order as follows:

"It needs to be noted that the order of the Chief Officer dated 20-2-1979, Miscellaneous Appeal No. 18 of 1979 is preferred on 3-4-1979. Similarly, Miscellaneous Appeal No. 19 of 1979 is preferred on 4-4-1979. It is obvious that both the appeals are preferred beyond 30 days next after the date on which the order was passed. However, it needs to be noted that Section 10(2) of the Act provides that an appeal under sub-section (1), if it is against an order under Section 5, shall be preferred within 30 days from the date of affixture of the order under sub-section (1) of Section-5. It is, therefore, clear that the starting point of limitation is the date on which the notice of the order of eviction is affixed on the out-door or some other conspicuous part of the premises. The learned advocate for the respondent Sri K. Basappa Gowda, has not clarified or dilated as to on what date the notice of the impugned order was affixed as contemplated in Section 5(1) of the Act. The records also do not throw any light as such on this aspect. However, in the appeal memo in M.A. No. 18/1979, it is stated that though the order under appeal, is dated 20-2-1979, the same was served on the appellant on 3-3-1979. Similarly, in M.A. No. 19/1979 also, in the appeal memo, it is stated that the order was served on the appellant on 3-3-1979. If that be so, on appellant''s own showing, the appeals ought to have been preferred on or before 2-4-1979. However, M.A. No. 19/1979 has been preferred on 4-4-1979. Hence, it is clear that there is a delay of one day in preferring M.A. No. 18/1979 and there is a delay of two days in preferring M.A. No. 19/1979. It is well settled that in order to have the benefit of Section 5 of the Limitation Act, it is the duty of the applicant who seeks such benefit, to explain the delay of every day that elapsed beyond the period of limitation. If any authority is needed on this proposition, the decision in State of Mysore v. Laxman Sharanappa Shiraguppa, reported in (1964) (1) Mys. L.J. at page 302., can be looked into with advantage. In the instant case, there is not only no explanation for the delay, but there is an assertion that the appeal is intime. In that view of the matter, it is obvious that the delay in preferring these appeals is not explained at all. Under these circumstances, this Court has no option but to dismiss the both the appeals on the ground that they are barred by time."

Thus, he held that as there was a delay of one day in filing the first appeal, and two days in the second appeal and as there was no explanation offered seeking to condone the said delay, as required under Section 5 of the Act, he has no option but to dismiss the appeals on that ground alone. Accordingly, he dismissed the appeals. Hence, these petitions.

The main contention urged in support of the writ petition is that the notices issued from the Town Municipal Council, Kumsi Town, addressed to the petitioners were handed over to the post office at Kumsi on 3-3-1979 which was a Saturday. The next day being a Sunday, that Sunday should have been excluded because the notice came to be delivered to the petitioners only on 5-3-1979 Monday. To demonstrate the same, the petitioners have produced Annexure ''M''. In otherwords, the contention is that since after handing over the notices to the Post Office to be served upon the petitioners on 3-3-1979, the following day happens to be Sunday, having regard to Section 10 of the Karnataka General Clauses Act, that Sunday should have been excluded from counting 30 days for the purpose of maintaining the appeal as required under Section 10 of the Act. In the instant case, the learned District Judge was wrong in not applying Section 11 of the General Clauses Act, with a view to exclude 4-3-1979 which was a Sunday. If it was done, the appeals would be intime. This is all the crux of the matter.

With a view to appreciate the contention urged it is better to extract Section 10 of the Karnataka General Clauses Act, 1899 as follows:

"10. Compulation of time-Where, by (any Mysore Act or Karnataka Act) made after the commencement of this act, any Act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day or the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:

Provided that nothing in this section shall apply to any act or proceeding to which the (Indian Limitation Act, 1908) applies."

Having regard to sub-section (2) of Section 10, of the Act, it is clear that 30 days time is provided for filing an appeal against the order under Section 5 of the Act. That period of 30 days begins to run from the dale of affixture of the order under sub-section (1) of that section. In the instant case, it is an admitted fact that the learned District Judge did not peruse the original records to find out on what date the order came to be affixed. However, he has observed in para 7 as:"it is stated that though the order under appeal is 20lh February, 1979, the same was served on the appellant on 3-3-1979. Similarly in M.A. No. 18/1979 it is slated that the order was served on the appellant on 3-3-1979." In otherwords, there is admission made on the part of the appellant that the copy of the order came to be served upon him on 3-3-1979. This is one aspect of the matter. The other aspect of the matter is that the order sent by registered post came to be received by the petitioners on 3-3-1979 as per the posted acknowledgment, Annexure-M. It is, therefore, argued that 3-3-1979 happened to be Saturday and the following day was Sunday; therefore, that Sunday i.e., 4-3-1979 should have been excluded for the purpose of counting 30 days for filing appeal as required under Section 10 of the Karnataka General Clauses Act, 1899. If that is done, the argument is that there is no delay in filing the appeal. I do not think that there is any force in this contention. Section 10 of the General Clauses Act which deals with computation of time for purposes of limitation pertains to an Act enacted by the Karnataka State. The Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (Karnataka Act No. 32 of 1974) under which the petitions arise is a State Act. So, Section 10 can be applied here for computing the period of limitation. Now the question is whether 2-4-1979, the last day of limitation in this case, happened to be holiday. It is nobody''s case that that day was a public holiday. It cannot be because by a perusal of 1979 Calendar it is seen that though 3-3-1979 was a Saturday, the Second of April, 1979 was Monday. In that view of the matter, the last day of the limitation happened to be working day, the benefit of Section 10 cannot be extended. Therefore, the contention urged is one without any force. There is another aspect of the matter which has to be noticed in a case like this. Section 10 of the General Clauses Act cannot be applied to an Act or proceeding to which Indian Limitation Act applies. In the instant case, it is undisputed that for the purpose of filing an appeal under Section 10 of the Act before the District Court, Section 5 of the Limitation Act is made applicable by virtue of the provisions of the Act. The delay, if any, may be condoned, if the appellate authority is satisfied about the cause shown, as provided in the proviso to Section 10 of the Act. However, the petitioners have not explained the delay of 1-2 days occurred in the instant cases by filing an application for condonation of delay. Therefore, the learned District Judge was right in dismissing the appeals on the ground of limitation.

Viewed from these circumstances, the writ petitions are bereft of any force. No other contentions are urged.

In the result, the writ petitions fail and are dismissed.