Mukut Behari And Another v. State Of Uttar Pradesh And Others

K.N Goyal, J.:— The petitioners were ordered to be evicted from a plot of nazul land by an order of the Prescribed Authority under the U.P Public Premises (Eviction of Unauthorised Occupants) Act, 1972 dated 28-2-1979. Against this order, the petitioners preferred an appeal on 26-4-1979 under Section 9 of the Act. An appeal could be filed within 15 days from the date of an order under Section 5(1) or within 15 days from the date of communication of an order under Section 7. The petitioners also filed an application under Section 5, Limitation Act, saying, inter alia, that the order dated 28-2-1979 was not communicated to them by the Prescribed Authority and also explaining the delay on the grounds of their illness etc. The District Judge at first allowed the appeal on merits 17-1-1980 without considering the question whether the appeal was within time or not. The State preferred a writ petition against that order and the same was allowed, and the matter was remanded to the District Judge for considering first the question of limitation. Thereafter the District Judge had dismissed the appeal as time-barred and had held that the ground of delay for condonation was insufficient. Aggrieved thereby the petitioners have come to this court under Article 226 of the Constitution.

2. I have heard learned counsel for the petitioners.

3. His contention is that the order was never communicated to the petitioners and as such the limitation never commenced. The learned District Judge has rightly held that the petitioners' counsel had obtained a certified copy of the order of the Prescribed Authority on 2-3-1979. They could not, therefore, say that the order remained un-communicated to them even thereafter. Even reckoning the period of limitation from 2-3-1979, the appeal was time-barred.

4. The ground of illness was also untenable because the petitioners had themselves sworn as affidavit in the civil court on 21-4-1979, while the appeal was filed on 26-4-1979 and this delay of five days was also not explained.

5. Learned counsel for the petitioners has further argued that the order under Section 5 was never published. This ground was, however, not taken before the District Judge. The complaint was only of non-communication, which is a ground having reference to Section 9(2)(b). There was no complaint about non-publication which could have had reference to Section 9(2)(a). Thus, this new ground cannot be entertained at this stage.

6. There is thus no merit in this writ petition which his hereby dismissed in limine.

7. It has been stated by the State that the land in question is required for the extension of the Balrampur Hospital. Accordingly, the petitioners' prayer for grant of time to vacate the land has been opposed. The petitioners have not so far alleged that they applied for allotment of any accommodation under the U.P Act XIII of 1972. However, considering their hardship, they are allowed two months' time to vacate the premises. The order will be executed immediately on the expiry of the said period of two months. This, grant of time is subject to the condition that the petitioners file an undertaking on affidavit within a week to the effect that they will deliver vacant possession to the authorities at the expiry of time granted and will not transfer possession to anyone else during this period. In case of failure to furnish such undertaking, they shall be liable to be evicted on the expiry of one week from today.

8. Petition dismissed.