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Showing contexts for: constructive knowledge in The Hosdurg Primary Co-Operative vs State Of Kerala on 18 January, 2010Matching Fragments
"8. The case law thus shows that three or four theories were competing for supremacy, in the interpretation of provisions relating to limitation. One approach was to go by the literal or grammatical construction, ignoring considerations of equity and hardship. Another was to emphasise the purpose of the remedy, where a person's rights were affected and to hold that knowledge, constructive or actual, was necessary. The third was to fix up the point of time when it could be held that the order was effectively made, as distinct from the date of its mere making. And the fourth was to postulate that an order was no order at all for the purposes of limitation, unless the party against whom it was passed had some means of knowing about it. The question here is which of the above approaches should prevail in the interpretation of S.23 of our Act.
9. In Varghese v. RTA, Malappuram (1984 KLT 991), U.L.Bhat, J. (as His Lordship then was) considered the question whether the period of limitation for filing a revision petition under sectin 64A of the Motor Vehicles Act, 1939 starts from the date of the order or from the date on which the revision petitioner had actual or constructive knowledge of the impugned order. The learned Judge held after a detailed analysis of the case law on the point including the decision of M.P.Menon,J. in Joseph v. Deputy Collector (supra) as follows:
10. S.64 A of the Act which provides a revisional remedy stipulates that the application must be made within 30 days of the order. Rule 172 of the Rules reiterates this provision. Of course, there are certain other rules such as rules 170 and 225 where the limit prescribed is 30 days of the receipt of the order appealed against. In those cases, certainly, there would be no difficulty in interpreting the provisions of the Rules. They are clear and unambiguous and subserve the statutory purpose. But, it appears to me that the provision of limitation in S.64A of the Act and rule 172 of the Rules must be read along with latter portion of rule 172 which states that the application shall be accompanied by the original or a certified copy of the order or proceedings against which the application is preferred. The person aggrieved by the impugned order whether or not he was present at the time of the passing of the order, whether or not copy of the order was served on him, is required to produce either the original or a certified copy of the order along with the application. In these circumstances, to hold that the time stipulated for filing the application would start to run from the date on which the order was made or signed or the decision was arrived at, would amount to stultifying the statutory remedy. He cannot produce the original unless it is served on him. He cannot produce a certified copy unless it is supplied to him. Where it is not supplied to him by the authority, he must be in a position to apply for and obtain a certified copy. This would postulate the presence of actual or constructive knowledge of the order in him. That is the basis of the provision. The expression "30 days from the date of the order" must be understood in this way. Time will begin to run only from the date on which he had actual or constructive knowledge of the order as the case may be, of the impugned order.
11. In W.A.Nos.1886 and 1965 of 2006, Krishnan v. State of Kerala (2007 (1) KLT Short Notes page 45, case No.62) and in Calicut City Service Co-operative Bank and another v. State of Kerala and others (2008 (3) KHC 917) relied on by the learned Senior Government Pleader, this Court did not decide the question whether the period of limitation prescribed for filing an appeal runs from the date of the order or decision appealed against or from the date of communication of a copy thereof. In the said cases, the question considered was whether the Government have the power to entertain an appeal filed beyond the period of limitation after condoning the delay in filing the appeal. In Krishnan v. State of Kerala (supra) the Division Bench was considering the question whether the Government have the power to condone the delay in filing an appeal, filed beyond the period of 60 days from the date of receipt of the order passed under section 8 (5) of the Kerala Motor Transport Workers Welfare Fund Act, 1985. Relying on an earlier Division Bench decision of this Court in District Execution Officer v. Abel (2006 (2) KLT 758), it was held that in the absence of any provision expressly conferring such power on the Government, the Government have no power to condone the delay in filing an appeal under the Kerala Motor Transport Welfare Fund Act. In Calicut City Service Co-operative Bank and another v. State of Kerala and others (2008 (3) KHC 917), the question considered was whether under section 83 (2) of the Kerala Co-operative Societies Act, 1969 the Government have the power to condone the delay in filing an appeal. It was held that section 83(2) of the Kerala Co-operative Societies Act does not confer on the Government the power to condone the delay in filing an appeal. In the two decisions referred to and relied on by the learned Senior Government Pleader, the question whether the period of limitation starts from the date of the order or from the date of actual or constructive knowledge of the order appealed against did not arise for consideration.