Andhra HC (Pre-Telangana)
Kommuri Vamana Rao And Anr. vs Hindustan Petroleum Corporation Ltd. ... on 28 March, 2002
Equivalent citations: 2002(5)ALT595
ORDER V.V.S. Rao, J.
1. The writ petition is filed questioning the order passed by the learned Chief Judge, City Civil Court, Hyderabad, dt. 3-12-2001 in I.A.No. 1873 of 2001 in C.M.A. SR.No. 10786 of 2001 dismissing the application to condone the delay of 16 days in filing the appeal. A consequential direction is also sought to direct the learned Chief Judge, City Civil Court, the Appellate Authority, to take appeal on file and dispose of the same after setting aside the order in I.A.No. 1873 of 2001.
2. The facts in brief necessary for disposal of the writ petition may be noticed. The father of the petitioners late Raja Rao was in possession of the land admeasuring 120 Sq. yards being eastern portion of premises bearing No. 6-1-69/1, Saifabad, Hyderabad since 1963. It is alleged that they enjoyed all easementary rights and was lawfully inducted by the second respondent -M/s. Happy Service Centre, a retail petroleum outlet of the first respondent corporation (Hindustan Petroleum Corporation Limited). Raja Rao, and after his death his two sons, the petitioners herein were running a motor garage which they call cold repairing work shop. It is also alleged that the second respondent invited the petitioners as part of the requirements of M/s Esso, the immediate precursor of the first respondent Corporation. In February 2001, the first respondent invoked the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short, the Act). The Estate Officer, the third respondent herein passed an order ordering eviction of the petitioners on 28-6-2001. Enclosing Photostat copy of eviction order, they filed an appeal under Section 9 of the Act on 11-7-2001, but without enclosing the original order of the Estate Officer, which they filed subsequently. Therefore, they filed an application being I.A.No. 1873 of 2001 to condone the delay of 16 days in filing the appeal. The Court of Chief Judge, City Civil Court, the designated Appellate Authority under Section 9 of the Act dismissed the same by the impugned order. Hence, the present writ petition is filed challenging the same. This Court while admitting the writ petition on 7-12-2001 issued interim order for a period of two weeks in W.P.M.P.No. 31737 of 2001 which was subsequently extended until further orders. The first respondent - Corporation filed an application being W.V.M.P. No. 344 of 2002 to vacate the interim order dt. 7-12-2001. The learned Counsel for the petitioner and the learned Standing Counsel for the first respondent Corporation made elaborate submissions. In view of the same, with their consent the matter is being disposed of finally.
3. Sri G. Manohar, learned Counsel for the petitioner submits that copy of the order of the Estate Officer dt. 28-6-2001 was received by the petitioners on 30-6-2001. As the same was misplaced during house renovation the petitioners filed an appeal on 11-7-2001 with a Xerox copy of the order and that the copy of the original order was filed later. As there was delay an application was filed to condone the delay of 16 days. He placed reliance on the judgment of the Supreme Court in N. Balakrishnan v. M. Krishna Murthy, and submits that the learned Chief Judge failed to exercise discretion properly by passing orders on the application to condone delay. Sri P.V. Sanjay Kumar, learned Standing Counsel for the Hindustan Petroleum Corporation Limited also placed reliance on the judgment of Balakrishnan's case and submits that when the Chief Judge, who is Appellate Authority under Section 9 of the Act has exercised discretion, this Court should not interfere with the same under Article 226 of the Constitution of India.
4. The short question that falls for consideration is whether the learned Chief Judge is justified in refusing to condone the delay of 16 days in filing the appeal.
5. It is not denied by the respondents that the petitioner filed appeal under Section 9 of the Act on 11-7-2001 with Xerox copy of the order. As a matter of fact, the appeal, therefore, was presented before the learned Chief Judge within the period of limitation prescribed under Section 9 of the Act. Be it noted that[appeal has to be preferred within a period of 12 days from the date of publication of the order under Sub-section (1) of Section 5 of the Act. When the petitioners received original copy of the order dt.28-6-2001 which was admittedly served on him on 30-6-2001 they immediately filed the same with a copy thereof, but, sought condonation of delay of 16 days after filing original of the eviction order.
6. The question therefore is whether the petitioners presented proper appeal under Section 9 of the Act before the appellate authority. A question would also arise whether the petitioners have satisfied the requisite conditions for condoning the delay as per the proviso to Sub-section (2) of Section 9 of the Act which enables the appellate authority to entertain the appeal after expiry of period of limitation if the appellant satisfies that he was prevented by sufficient cause by filing appeal within the time. Sub-sections (1) and (2) of Section 9 of the Act read as under:
9. Appeals:-- (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under Section 5 or Section 5-B or Section 5-C or Section 7 to an appellate officer who shall be the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years standing as the district judge may designate in this behalf.
(2) An appeal under Sub-section (1) shall be preferred,--
(a) in the case of an appeal from an order under Section 5 within twelve days from the date of publication of the order under Sub-section (1) of that section;
(b) in the case of an appeal from an order under Section 5-B or Section 7, within twelve days from the date on which the order is communicated to the appellant; and
(c) in the case of an appeal from an order under Section 5-C, within twelve days from the date of such order:
Provided that the appellate officer may entertain the appeal after the expiry of the said period, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
7. In exercise of the powers conferred under Section 18 of the Act, the Central Government made the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 ('the Rules' for brevity). Rule 9 thereof reads as under:
9. Procedure in appeals:-- (1) An appeal under Section 9 of the Act shall be in writing, shall set forth concisely the grounds of objection to the order appealed against, and shall be accompanied by a copy of such order.
(2) On receipt of the appeal after calling for and perusing the record of the proceedings before the estate officer, the appellate officer shall appoint a time and place for the hearing of the appeal and shall give notice thereof to the estate officer against whose orders the appeal is preferred, to the appellant and to the head of the department or authority in administrative control of the premises.
8. Section 9 of the Act does not require appeal to be filed along with the copy of the order. Nonetheless, Clause (f) of Sub-section (2) of Section 18 enables the Central Government to make rules prescribing the manner in which the appeal be preferred and the procedure to be followed in the appeals. In furtherance thereof rules have been made and as noticed under Rule 9 the requirements are; (i) appeal to the appellate authority shall be in writing setting forth the grounds of objections against the order and (ii) the appeal shall be accompanied by a copy of the order. Under Section 9 of the Act appeal is provided against the orders passed under Sections 5, 5-B, '5-C or Section 7 of the Act. Under Section 5 of the Act an order for eviction of unauthorised occupants has to be passed by the Estate Officer after considering the cause shown by any person in pursuance of notice issued under Section 4 of the Act. In a case of eviction, Estate Officer may make an order of eviction under' Section 5 of the Act directing that the public premises shall be vacated on such date as may be specified in the order by all persons who may be in occupation thereof or any part thereof and cause a copy of the order to be affixed on the outer door of the public premises. Sub-section 2 of Section 5 of the Act is relevant and may be extracted:
5(2). If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of the date of its publication under Sub-section (1), whichever is later, the estate officer or any other officer duly authorised by the estate officer in this behalf may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from and take possession of the public premises and may, for that purpose, use such force as may be necessary.
9. Sub-section (2) of Section 5 enables the Estate Officer to forcibly evict and take possession of public premises if before the date specified in the order of eviction the person unauthorised occupant fails to comply with the order of eviction. A conjoint reading of Sub-sections (1) and (2) of Section 5 of the Act and Rule 9 of the Rules would show that Section 5 speaks of the order and Rule 9 speaks of a copy of the order to accompany the appeal under Section 9 of the Act. In my considered opinion, appeal preferred under Section 9 of the Act need not be accompanied by the order of eviction and it would be sufficient compliance if the appeal is accompanied by a copy of the order of eviction. The reasons for this conclusion are two-fold.
10. In English Grammar the words 'a', 'an' and 'the' are termed as Articles. Article 'a' is an indefinite article and 'an' is also an indefinite article used before a consonant (sic. vowel) sound whereas the article 'the' is called definite article and is used to denote a particular person or a particular thing. Section 5(1) of the Act uses the words ".........the Estate Officer may make an order of eviction....." whereas Sub-section (2) of Section 5 of the Act uses definite article as "If any person refuses or fails to comply with the order of eviction." The same is not the case with Rule 9 which provides the method and manner of preferring appeal. Rule 9 only states an appeal shall be accompanied by a copy of such order. Therefore, by reason of use of indefinite article 'a' it cannot be said that whenever an appeal is filed under Section 5 of the Act aggrieved person should enclose the order of eviction. It is sufficient if a copy of the said order is enclosed to the appeal.
11. In this context, a reference may also be made to the maxim expressum facit cessare taciturn which means that "where there is express mention of certain things then anything not mentioned is excluded". In B. Shankara Rao v. State of Mysore, the maxim was explained and followed by the Supreme Court. It was pointed out that this well known maxim is principle of logic and common sense and not merely a technical rule of construction Further in Union of India v. Tulsiram Patel, the Supreme Court applied the maxim while interpreting the proviso to Article 311(2) of the Constitution of India.
12. In view of the principle, it is not possible to read Rule 9 of the Rules requiring the appellant to file certified copy of order. Even an appeal presented with a copy of the order must be held to be valid presentation. Admittedly the petitioner presented appeal with a Xerox copy (Photostat copy) of the order of eviction within the period of limitation. The learned Chief Judge lost sight of this resulting in error in the impugned order. Therefore, the writ petition shall have to be allowed. Be it noted that the ground on which the writ petition is being allowed was neither pleaded nor taken, but this Court exercising public law jurisdiction cannot ignore such questions when deciding whether or not the lower authority has committed grave error of law. In view of this, the decision cited by the learned Counsel in Balakrishnan's case (1 supra) need not be referred to.
13. In the result, the writ petition is allowed and it is declared that the appeal presented by the petitioner before the learned Chief Judge, City Civil Court, Hyderbad is presented within the period of limitation and required to be adjudicated in accordance with law. The learned Chief Judge is requested to take up the appeal on file and dispose of the same as expeditiously as possible, preferably within a period of four weeks from the date, of receipt of this order. There shall be no order as to costs.