- (1.) D. K. Seth, J. Against the order dated 30-9-1980 passed in Revenue case No. 4 of 1979 by the Prescribed Authority in the proceedings under U. P. Public Premises (Eviction of Unauthorised Oc cupants) Act (hereinafter referred to as 'the Act), Misc. Appeal No. 62 of 1980 was preferred by the petitioner. By an order dated 9-3-1981 the said appeal was dis missed on two grounds, namely: first, the appeal was premature and in the absence of publication of the order dated 30-9-1980 it was not maintainable. Secondly, it was held that prima facie the appeal ap pears to be barred by time.
(2.) THIS order has been challenged by means of this writ petition. Mr. L. P. Naithani, learned counsel for the petitioner, argued that the reason given in the order is wholly misconceived. In as much as there is no provision for publica tion of the order under Section 5 (1) of the Act, therefore, the appeal cannot be premature and if it is not premature, in that event it could not have been dismissed on the grounds that it was barred by limita tion. According to the learned counsel, the two propositions cannot go together. Secondly, Mr. Naithani contended that the appeal was filed within time and there was no decision on the question as to how the appeal was time barred. According to him when the Court has come to the finding that it is time barred, in that event the Court ought to have given reasons so as to enable this Court to appreciate the reason ing given by the appellate authority. Mr. A. Upadhyaya, learned Stand ing Counsel on the other hand, contended that there is no infirmity in the order. Even if it is not premature but was found to be barred by limitation, the petitioner having not disclosed any materials as to how the appeal was filed within time on the face of specific order of the appellate Court, it is not open to the petitioner to assail the said findings. I have heard Mr. Naithani and Mr. Upadhyaya at length.
(3.) IN paragraph 7 of the writ petition, following statement has been made: "that the petitioner preferred appeal against the judgment and order, dated 30-8-1980 in the Court of the District Judge Tehri Garhwal. " Thus, it appears that the petitioner has not given the date on which he had filed the appeal. There is no other state ment to assert that the appeal was filed within time and it wash not barred by limitation. Mr. Naithani relied on the statements made in paragraphs 10 & 12 of the writ petition. Text of the said two para graphs is quoted below: "10. That the Section 5 (1) of the Act is clear on the point of publication. It does not mean that there should be a gazette notification. The Act clearly says that the copy of the order to be affixed on the outer door or some other conspicuous part of the public premises and that is the mode of publication. " "12. That the petitioner had filed the ap peal within 15 days of the date of publication. The District Judge has held that there is no publication on the basis that there is no publica tion of the order. This is incorrect. The District Judge has held that publication in any manner which required publication is necessary, if there has been no publication, there is no question of appeal being time barred. ";