Gujarat High Court
Matka Raydhar Sidabhai vs State Of Gujarat & 4 on 2 September, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/10351/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10351 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
MATKA RAYDHAR SIDABHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
==========================================================
Appearance:
MR VIJAY H NANGESH, ADVOCATE for the Petitioner(s) No. 1
MR MANAN MEHTA, ASSISTANT GOVERNMENT PLEADER for the
RESPONDENT(s) No. 1-5
==========================================================
CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 02/09/2015
ORAL JUDGMENT
Page 1 of 7
HC-NIC Page 1 of 7 Created On Mon Sep 07 04:29:44 IST 2015 C/SCA/10351/2015 JUDGMENT
1. Rule. Mr. Manan Mehta, learned Assistant Government Pleader waives service of Rule on behalf of the respondents.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 1.5.2015 passed by the State Government, whereby the said authority has rejected the appeal only on the ground that the appeal is filed after one month and twenty days beyond the statutory limit of 30 days.
3. At the outset, Mr. Vijay H. Nangesh, learned advocate for the petitioner has relied upon the order passed by this Court in Special Civil Application No.8669 of 2015, whereby while interpreting Section 18(1) of the Arms Act, 1959 read with Rule 55 of the Arms Rules, 1962, this Court was pleased to quash the order of noncondoning the delay of 44 days and was pleased to remand the proceedings to the appellate authority. Mr. Nangesh submitted that Page 2 of 7 HC-NIC Page 2 of 7 Created On Mon Sep 07 04:29:44 IST 2015 C/SCA/10351/2015 JUDGMENT the issue involved in the petition is squarely covered by the said judgment. The learned advocate for the petitioner has further relied upon the judgment of this Court in the case of Bhupendrasinh Ambadan Gadhvi Vs. State of Gujarat & Anr., reported in 2009 (2) GLH 613, wherein this Court had interpreted Section 18 of the Arms Act, 1959.
4. Mr. Manan Mehta, learned Assistant Government Pleader has candidly submitted that this Court may pass appropriate order condoning the delay and as the issue involved in the petition is identical to the issue decided by this Court in Special Civil Application No.8669 of 2015, wherein this Court has observed thus: "5.1 Rule 55 of the Rules provides for appeal against the licensing authority or the authority suspending or revoking the licence. Under sub clause
(b) of the said Rule, it is provided that the appeal against such order may be filed within 30 days from the date of issue of order and it further provides that under the said proviso to sub section (2) of Section 18, the appeal could be preferred against that order to the Page 3 of 7 HC-NIC Page 3 of 7 Created On Mon Sep 07 04:29:44 IST 2015 C/SCA/10351/2015 JUDGMENT appellate authority concerned. 5.2 As could be seen from Section 18 reproduced hereinabove, sub section (1) thereof says that the appeal may be preferred within such period as may be prescribed. The period prescribed is 30 days under Rule 55. Sub section (2) of Section 18 however provides that the appeal may be admitted after expiry of prescribed period if the appellant satisfies the appellate authority about a sufficient cause for not preferring appeal within time. Therefore, the statute provides for condoning the delay beyond prescribed period of 30 days.
5.3 Now, in the instant case the petitioner preferred an appeal on 23rd January, 2013 against order dated 9th November, 2012 of District Magistrate, which was beyond 30 days period and was delayed by 44 days. On 1st February, 2013, the Office of the appellate authority sent a communication that since there was a delay of 44 days, the reasons for delay with supportive materials should be furnished. Subsequently the impugned order came to be passed. 5.4 It appears that the petitioner had filed the appeal under Section 18 and together with the appeal submitted an application for condonation of delay. The explanation of the petitioner was that he was not aware about the order passed by the licensing authority, therefore the delay had occurred. It was stated that due to ignorance of the period within which the appeal was required to be preferred, the time limit could not be Page 4 of 7 HC-NIC Page 4 of 7 Created On Mon Sep 07 04:29:44 IST 2015 C/SCA/10351/2015 JUDGMENT observed.
5.5 It appears from the pleadings that the copy of order dated 09.11.2012 was received by the petitioner on 21.11.2012 by post. The delay of 44 days has occurred due to reasons stated as aforesaid. It could not be said that they did not constitute a sufficient cause for condoning the delay of 44 days. It is not possible to conclude that the delay was deliberate or the passage of time was deliberately whiled away. Sufficient cause for the purpose of proviso to subsection (2) of Section 18 for condoning the delay of 44 days beyond 30 days could be said to have been made out. The appellate authority ought to have condoned the delay."
5. In the instant case also, the order dated 30.12.2014 came to be challenged by the petitioner on 24.3.2015. Section 18 of the Arms Act, 1959 read with Rule 55 of the Arms Rules, 1962 clearly provide power to the appellate authority to condone the delay if the appellant satisfies that there was sufficient cause. It further appears from the grounds of the petition that the impugned order is passed by the appellate authority without giving an opportunity of being heard on the application of condonation of delay. It appears from the Page 5 of 7 HC-NIC Page 5 of 7 Created On Mon Sep 07 04:29:44 IST 2015 C/SCA/10351/2015 JUDGMENT copy of the application for condonation of delay filed in this proceeding that according to the petitioner, there was delay of 52 days. Considering the facts stated in the said application even in this case, similar direction deserves to be issued. The delay of 52 days deserves to be condoned and is hereby condoned.
6. Considering the aforesaid facts and circumstances, the impugned order dated 1.5.2015 passed by the appellate authority rejecting the petitioner's appeal by not condoning delay of 52 days is hereby quashed and set aside and the delay stands condoned. The proceedings of Appeal No.HVD/4815/157/M are hereby remitted back to the appellate authority. The appellate authority shall hear the petitioners on merits and pass an appropriate reasoned order. It is however clarified that this Court has not gone into merits of the matter and the appellate authority shall decide the appeal independently Page 6 of 7 HC-NIC Page 6 of 7 Created On Mon Sep 07 04:29:44 IST 2015 C/SCA/10351/2015 JUDGMENT without in any manner being influenced by any of the observations made in this judgment as well as the order impugned.
7. Accordingly, the petition is allowed in the above terms. Rule is made absolute to the aforesaid extent.
(R.M.CHHAYA, J.) mrp Page 7 of 7 HC-NIC Page 7 of 7 Created On Mon Sep 07 04:29:44 IST 2015