Munshi Zulfikar Vs. State and ors. - Court Judgment

Excerpt:
- bashir a. kirmani, j.1. petitioner's case is that on 4.3.2003 building operation control authority (in short boca) vide its decision no. 104 dated 1st feb. 2004 taken in his building permission case 702/w-14 granted permission for laying of rcc slab over existing two storied structure situated at sheri-bhat hawal as per plan under its order no. 687 of 2003 dated 4.3.2003 with a stipulation that the structure should be completely blind on north and west for which he executed an undertaking. this permission was challenged by respondents herein an appeal captioned 'gulzar ahmed wani v. chairman boca and ors' on 27th march 2003. originally the appeal was not accompanied by an application for condonation of delay, objections whereto were filed by petitioner on 21.04.2003, but it some how remained pending till 7th oct. 2003 when it was allowed by the special tribunal. in the meanwhile proceedings on the main appeal had been continuing with both sides in attendance, which was posted for arguments on 30th nov. 2003.2. aggrieved by tribunal's order to allow condonation of delay as aforesaid the petitioner has filed this writ petition to assail the same on the ground that the delay admittedly involved in presentation of the appeal could not be condoned by tribunal for the reason that it was not permissible under law and as such by doing the same the tribunal has acted without jurisdiction. in addition to that, the second respondents locus standi to institute an appeal before the tribunal below also has also been challenged.3. perusal of the record of proceedings herein reveals that the petition has been admitted to hearing as for back as in nov. 2003, and respondents asked to file their reply affidavit which has been done by respondents 3 to 5 only. vide interim order dated 11th march 2005, four weeks further time has been given to second respondent for filing reply which he has failed to do till date despite repeated opportunities and extension of time, consequent whereupon the right to file the same is hereby closed and the matter taken up for disposal.4. in their reply affidavit, the respondents 3 to 5 i.e chairman/secretary of boca, and administrator of srinagar municipal corporation have surprisingly tried to support the condonation of delay impugned in this writ petition even while the appeal wherein delay was involved had been filed against the building permission granted by them, which ordinarily they should have defended. however, in their reply they state that the second respondent was an aggrieved person and had a right to maintain the appeal and the fact that same was delayed could not be used to throw him out of the court. they have also pleaded that petitioners appeal against the demolition order issued against him by officers of said respondents too is pending in the tribunal below. as already said no reply has been filed by second respondent. during course of submissions appearing counsel have reiterated the contents of their pleadings, while nobody is present to be heard for respondent no. 2.5. i have heard learned counsel and considered the matter. the moot question that emerges for consideration in the writ petition is whether it is within powers of the special tribunal below to condone delay in cases of appeals preferred under section 13 of coboa act against permission and demolition orders granted under section 7 or 10 thereof. consideration of question may be started by quoting section 13 of the act which provides for appeal in following terms:section 13. (1) an appeal against the order of an authority made under (section 5 or) section 7 shall lie to such persons as the government may by notification in the government gazette, appoint in this behalf (hereinafter called 'the appellate officer') within seven days after the date of the aforesaid order of the authority. the memorandum of appeal need not be accompanied by the copy of order appealed from....thus, under the appeal provision of aforesaid, the period of limitation provided for filing an appeal thereunder is 7 days and there is no provision providing for condonation of delay involved in institution of appeal nor has any of the provision of the limitation act providing for the same, been made applicable to the appeals under section 13 above said either expressly or by implication. the point, therefore, is as to when a special act provides for institution of appeal within a period of time as different from the one provided for such proceedings under the limitation act without containing any enabling provision to authorize condonation of delay, would it be proper for the appellate forum to condone the delay involved in institution of appeal. incidentally the question is no more resintegra and stands already settled by a lucid judgment of this court passed in case captioned 'pushpa devi v. nanak singh' reported as 1982 klj 278, wherein applicability of the provisions of limitation act regarding extension of time/condonation of delay in filing appeals under the said act has been lucidly discussed as under:.(4) on the plain language of sub-section (2) once it is shown that the special or local law under which the suit, application, or appeal is brought, provides for it a period of limitation different from the one provided therefor by the first schedule, all provisions of the limitation act, except those contained in section 3, 4, 9 to 18 and 22 shall have no application to such suit, application or appeal proprio vigore. even the provisions contained in section 4 and 9 to 18 and 22 shall have no application in; so far and to the extent to which they are expressly excluded by the special or local law under which the suit, application or appeal is brought. with due respect to the ld. acting chief justice, there is no warrant for the proposition that section 5 is independent of section 29 and has nothing to do with reckoning of the period of limitation. period of limitation is prescribed by the first schedule. how that period is to be reckoned in different cases under different circumstances has been provided by various section of limitation act, including section 5, which too has the effect of extending the same in certain given cases on proof that this section has no bearing on the computation of period of limitation prescribed under the first schedule. unless, therefore, section 5 is specifically made applicable to any suit, appeal or application by the special or local law prescribing limitation for the same, it cannot apply to it by its own force.... the law thus seems to be well settled that the expression 'under the code of civil procedure' occurring in article 156 merely connotes that an appeal shall lie to the to the high court the procedure to be followed wherein is governed by the code of civil procedure. it does not connote that the right to file the appeal itself must be conferred by the code of civil procedure. the procedure to be followed in appeals under the act, there can be no manner of doubt, is one prescribed by the code of civil procedure. section 23 of the act specifically makes the code applicable to all proceedings under the act. the conclusion that article 156 would have applied to appeals under section 34 of the act had this section not prescribed the period of ninety days for filing appeals under it is, therefore, inescapable. the first contention raised by mr. rachpal singh is, therefore, overruled.in view of the opinion expressed in the above said judgment thus, with which i am in respectful agreement, the tribunal appears to have exceeded its jurisdiction by condonation of delay involved in the appeal rendering the order of condonation of delay impugned herein liable to be over set. at the same time, however, as revealed by the memo of objections field by respondents 3 to 5 the present petitioner also has reportedly filed an appeal against demolition order purporting to have been issued by them against him presumptively because of certain violations in the approved plan which is pending before the tribunal, and respondent no. 2 does not so far appear to have sought his impleadment therein as being a party effected due to building permission questioned by him in his appeal, which under law would perhaps be available to him.6. in cumulative view of the circumstances as cataloged above the petition is, allowed and the impugned order of condonation of delay dated 07.10.2003 passed by special tribunal below is set aside with direction to tribunal to pass consequential orders on the main appeal. lest the second respondent who claims to have a genuine interest in the matter may be totally non suited, it is provided that the tribunal below may consider his request for impleadment in petitioners appeal, if pending, as and when sought, positively.7. the petition stands accordingly disposed of along with all connected cmp(s).