SURAT MAHANAGAR PALIKA SEVA SADAN Vs. ZAVERBHAI NANDIBHAI NANDU
LAWS(GJH)-2008-12-167
HIGH COURT OF GUJARAT
Decided on December 18,2008

Surat Maha Nagar Palika Seva Sadan Appellant
VERSUS
Zaverbhai Nandibhai Nandu And Ors Respondents

JUDGEMENT

- (1.) BY way of this petition under Article 227 of the Constitution of India, the petitioner - original appellant - Surat municipal Corporation through its commissioner has prayed for an appropriate writ, direction and/or order quashing and setting aside the order dated 21. 11. 2007 passed in Delay Condonation Application no. 47 of 2001 by the learned Principal district Judge, Surat who by impugned order has rejected the said application for condonation ofdelay by quashing and setting aside the earlier order dated 07. 03. 2002 passed by the learned Extra Assistant Judge, surat passed in aforesaid Delay condonation Application No. 47 of 2001 condoning delay in preferring appeal against the judgment and order dated 07. 09. 2000 passed by the learned Civil Judge, (SD), surat passed in Tax Appeal No. 33 of 1997. Being aggrieved and dissatisfied with the judgment and order dated 07. 09. 2000 passed by the learned Civil Judge (SD), surat in Tax Appeal No. 33 of 1997, the petitioner - Corporation preferred Appeal before the District Court, Surat and there was delay of approximately 82 days in preferring the said appeal and therefore, the petitioner - Corporation submitted delay condonation application No. 47 of 2001 requesting to condone delay in preferring the said appeal by submitting that the appeal was required to be preferred on or before 20. 01. 2001. However, due to administrative reasons, the appeal could not be preferred on or before 20. 01. 2001. Thereafter, due to earthquake on 26. 01. 2001, the appeal could not be preferred at the earliest and therefore, there was delay of 82 days in preferring appeal. Therefore, it was requested to condone delay in preferring the appeal. The learned Extra Assistant Judge, Surat by order dated 07. 03. 2002 allowed the said application and condoned delay in preferring the aforesaid appeal. It appears that learned District Judge, Surat took said order in suo-moto revision / review and by impugned order dated 21. 11. 2007, learned principal District Judge, Surat dismissed delay condonation application No. 47 of 2001 without even quashing and setting aside the earlier orderdated 07. 03. 2002 passed by the learned Extra Assistant Judge, surat passed in aforesaid Delay condonation Application No. 47 of 2001 by which delay was condoned and aforesaid application No. 47 of 2001 was allowed by holding that considering provisio to Section 411 of the Bombay Provincial Municipal corporations Act, 1949 (herein after referred to as 'the BPMC Act') the appeal from a decision of the Judge in an appeal under Section 391 against an assessment of compensation is provided 30 days and therefore, when limitation is prescribed by the said Act, provisions of Section 5 of the limitation Act would not be applicable.
(2.) MR. PRASHANT Desai, learned Senior advocate appearing on behalf of the petitioner has vehemently submitted that the learned Principal District Judge, Surat has materially erred in dismissing the delay condone application No. 47 of 2001 by holding that Section 5 of the Limitation Act would not be applicable. It is submitted that as such impugned order passed by the learned Principal District Judge, Surat is without any jurisdiction, as once the delay condonation application was allowed and delay was condoned, thereafter, the learned principal District Judge having coordinate jurisdiction has no jurisdiction to review earlier order by which delay was condoned. It is further submitted that while passing order dated 21. 11. 2007 even order dated 07. 03. 2002 by which delay was condoned and delay condonation application No. 47 of 2001 was allowed is not set aside by the learned Principal District Judge, Surat. It is further submitted that even otherwise on merits also, the impugned order passed by the learned Principal District Judge, Surat deserves to be quashed and set aside. It is submitted that the appeal was preferred by the Corporation under Section 411 of the bpmc Act which is in Chapter XXVI and as per Section 435 of the Act in computing the period of limitation prescribed for an appeal or application referred to in the said chapter, the provisions of Sections 5, 12 and 14 of the Indian Limitation Act shall, so far as may be apply. Therefore, it is submitted that in view of specific provisions under the BPMC Act i. e. under Section 435, impugned order passed by the learned principal District Judge, Surat holding that in an appeal under Section 411 of the Act, section 5 of the Limitation Act would not be applicable, cannot be sustained and same deserves to be quashed and set aside. It is submitted that impugned order passed by the learned Principal District Judge, Surat is just contrary to section 435 of the BPMC act, therefore, it is requested to allow present Special Civil Application.
(3.) PETITION is opposed by Mr. Tushar mehta, learned Senior Advocate appearing on behalf of the respondent. It is submitted that as in Section 411 of the BPMC Act, it is provided that no appeal shall lie if same is not preferred within 30 days, learned principal District Judge, Surat has rightly held that when there is specific provisions in the Special Act, provisions of Limitation act would not be applicable. Therefore, it is requested to dismiss present Special Civil application.;


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