Gujarat High Court
Ishwarnagar Co-Operative ... vs Rajendra Chotubhai Desai on 22 September, 2023
Bench: Bhargav D. Karia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6525 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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 ?
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ISHWARNAGAR CO-OPERATIVE HOUSING SOCIETY LTD. & 2 other(s)
Versus
RAJENDRA CHOTUBHAI DESAI & 5 other(s)
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Appearance:
MR MASOOM K SHAH(6516) for the Petitioner(s) No. 1,2,3
NEHA M SHAH(9218) for the Petitioner(s) No. 1,2,3
for the Respondent(s) No. 3,4
MR MEHUL S. SHAH, SENIOR ADVOCATE WITH MR DK NAKRANI(500)
for the Respondent(s) No. 2,3.1,4.1,4.2,4.3,4.4,5
MS KAUSHAL D NAKRANI(5121) for the Respondent(s) No.
2,3.1,4.1,4.2,4.3,4.4,5
NOTICE SERVED for the Respondent(s) No. 1,6
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 22/09/2023
CAV JUDGMENT
1.Heard learned advocate Mr.Masoom K. Shah for
the petitioners and learned Senior Advocate
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Mr.Mehul S. Shah appearing with learned
advocate Mr.D.K.Nakrani for the respondents.
2.Rule returnable forthwith. Learned advocate
Mr.D.K.Nakrani waives service of notice of
rule on behalf of respondents.
3.By this petition under Article 226 and 227 of
the Constitution of India the petitioners
have prayed for the following reliefs:
"A. Be pleased to quash and set aside
the impugned order dated 12.10.2017
passed by the Gujarat State Co-operative
Tribunal, Ahmedabad in Miscellaneous
Application (Delay Condonation) no. 38
of 2017.
B. Pending admission, hearing and final
disposal of this Petition be pleased to
stay the impugned order dated 12.10.2017
passed by the Gujarat State Co-operative
Tribunal, Ahmedabad in Miscellaneous
Application (Delay Condonation) no. 38
of 2017.
C. Pending admission, hearing and final
disposal of this Petition be pleased to
direct the respondents to maintain
status quo qua the Plot no. 92, 93, 96,
97 and 98 of the Petitioner Society.
D. Costs of this Petition are awarded.
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E. Such further and other relief, order
or direction which may be just, fit,
proper and equitable in the facts and
circumstances of the Petition."
4.The brief facts of the case are that the
petitioner no.1 is a Cooperative Housing
Society registered under the provisions of
the Gujarat Cooperative Societies Act, 1961
(for short "the Act").
4.1. An agreement for sale dated 04.06.1985 was
executed between Mr.Natwarlal Ishwarlal
Desai, Gunvantbhai Ishwarlal Desai and
Bipinchandra Dhirajlal Desai and the
petitioner society to purchase the land for
petitioner society which is a housing
society. On 31.01.1988 the petitioner society
purchased survey nos.154 and 155 admeasuring
5016.78 sq.mtrs. at Majura, Surat by
registered sale deed dated 31.12.1980.
Thereafter, the petitioner society purchased
the land admeasuring 7525.22 sq.mtrs. Of the
said survey numbers by registered sale deed
dated 31.01.1981. In total 100 plots were
allotted by the petitioner society within the
said land. On 10.07.1980, First General
Assembly of the petitioner society was
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called, and Chairman and Secretary were
appointed however the plots were not allotted
to the members. On 20.07.1980, four members
tendered the resignation which was accepted
by the Managing Committee of the Society and
on 19.08.1980 other four tendered resignation
which was also accepted. Thereafter one
member resigned on 25.10.1980 whose
resignation was accepted on 26.10.1980.
4.2. According to the petitioner after conclusion
of the First Ordinary General Meeting and
after appointment of the Chairman false
minutes were wrongly recorded by allowing the
resignation of eight members.
4.3. In the meeting of the Managing Committee
held on 20.07.1980 the names of the relatives
of the land owners i.e. respondent nos.1 to 5
were added. In the Managing Committee Meeting
held on 26.10.1980 Ms.Madhuriben Dalal
resigned and respondent no.1 who happens to
be the son-in-law of Bipinchandra Dhirajlal
Desai- original land owner was appointed as a
member.
4.4. The petitioner society published a notice
dated 17.04.1988 in Gujarat Mitra Newspaper
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stating that plot nos.92, 93, 96, 97 and 98
were not allotted to anyone and whomsoever
was holding any portion was directed to
intimate the society in writing. The
respondents-original plaintiffs who filed
Lavad Case No.615 of 1988 seeking declaration
that they were the members of the petitioner
society and they have been allotted the said
plots filed a written reply on 26.04.1988
followed by the suit filed on 30.04.1988.
4.5. The petitioners filed their reply in the
Lavad Case on 20.09.1988 and thereafter the
board of nominee framed issues on 20.04.1990
but failed to frame the issues on
jurisdiction of the board of the nominees to
try the suit.
4.6.By judgment and decree dated 18.10.2011 Lavad
Case no.1151 of 2002 (Old case no.615 of
1988) was allowed in absence of the
petitioners and procedure as prescribed in
Rule 41 of the Gujarat Cooperative Societies
Rules, 1965 was not followed with regard to
the intimation of the judgment to the
petitioners-defendants in the said Lavad
Case.
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4.7.The respondents thereafter approached the
petitioner society seeking possession of the
aforesaid plots and at that point of time,
the petitioner society became aware about the
judgment passed by the board of nominees. The
petitioner society therefore applied for a
certified copy of the order passed in Lavad
Case No.1151 of 2002 on 29.11.2016 before the
District Registrar.
4.8. The petitioner after receiving the certified
copy preferred appeal before the Gujarat
State Cooperative Tribunal at Ahmedabad (for
short "the Tribunal") in March 2017 along
with an application to condone the delay
being Miscellaneous Application (Delay
Condonation) No.38 of 2017. The petitioners
also filed an application seeking interim
relief against the respondents. The
respondents filed a reply to the delay
condonation application filed by the
petitioners on 19.07.2017. The petitioners
filed rejoinder to the reply. The Tribunal by
the impugned order dated 12.10.2017 dismissed
the Miscellaneous Application (Delay
Condonation) No.38 of 2017 by order dated
12.10.2017.
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5.The petitioners being aggrieved by the said
order dated 12.10.2017 have preferred this
petition.
5.1. Learned advocate Mr.Masoom Shah for the
petitioner submitted that the respondent
nos.1 to 5 who are original plaintiffs are
not the members of the society hence they
have no locus to file the suit and
consequently the learned Board of Nominees
has no jurisdiction to hear the suit.
5.2. It was submitted that the petitioner society
came to know about the judgment and decree
passed by the Board of Nominees only when the
respondents approached the society seeking
possession of the plots in question and
thereupon the inquiry, the petitioner society
became aware about the fact of the order
passed in favour of the respondent nos. 1 to
5.
5.3. It was submitted that the appeal was filed
immediately on obtaining the certified copy
by the petitioner society before the Tribunal
and the Tribunal therefore ought to have
condoned the delay as the petitioners have
shown the sufficient cause for delay in
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preferring the appeal.
5.4. It was further submitted that there is a
breach of Rule 41(4) of the Rules as the
Board of Nominees did not serve the copy of
the judgment and decree. It was submitted
that the Tribunal failed to consider that the
advocate of the petitioners did not inform
the petitioner society and applied for
certified copy but never provided such copy
to the petitioner society.
5.5. In support of his submissions learned
advocate Mr.Masoom Shah referred to and
relied upon the following decisions:
(i) State of Maharashtra And Others Vs. ARK
Builders Private Limited reported in (2011) 4
SCC 616, it is held as under:
"16. We may here refer to a decision
of the Patna High Court in Dr. Sheo
Shankar Sahay v. Commissioner, Patna
Division and Ors., 1965 BLJR 78.
Section 18(1) of the Bihar Building
(Lease, Rent and Eviction) Control
Act, 1947 prescribed a period of
limitation of 15 days for filing an
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appeal against an order of the House
Controller and provided as follows:
"18. Appeal.-any person
aggrieved by an order passed by
the Controller may, within
fifteen days from the date of
receipt of such order by him,
prefer an appeal in writing to
the appellate authority"
It was contended on behalf of
the petitioner before the High
Court that the order-sheet of
the House Controller was shown
to the lawyer of the respondent
on June 10, 1959 and therefore,
that would be the starting point
of limitation under section
18(1) of the Bihar Building
(Lease, Rent and Eviction)
Control Act, 1947. A division
bench of the High Court
consisting of Chief Justice V.
Ramaswami (as his Lordship then
was) and Justice N.L. Untwalia
(as his Lordship then was)
rejected the submission
observing as follows:
"2. ... But we shall assume
that the petitioner is right
in alleging that the order
was shown to the lawyer on
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the 10th June, 1959. Even
so, we are of opinion that
the appeal preferred by
respondent no.4 before the
Collector of Shahabad was
not barred by limitation.
The reason is that Sec.
18(1) provides limitation of
fifteen days "from the date
of receipt of the order" and
not from the date of
communication of the order.
It is significant that Sec.
14 of the Bihar House Rent
Control Order, 1942, had
provided that "any person
aggrieved by an order of the
Controller may, within
fifteen days from the date
on which the order is
communicated to him, present
an appeal in writing to the
Commissioner of the
division". Sec. 18(1) of
Bihar Act III of 1949 is
couched in different
language. In our opinion,
Sec. 18(1) implies that the
Controller is bound, as a
matter of law, to send a
written copy of his order to
the person aggrieved, and
limitation for filing an
appeal does not start unless
and until the copy of the
order is sent. In the
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present case it is not
disputed that no copy of the
order was sent to respondent
no.4. It is true that the
respondent himself applied
for a copy of the order on
the 11th December, 1959, and
obtained a copy on the 14th
December, 1959. In any
event, therefore, limitation
will not start running
against respondent no.4
under Sec. 18(1) of the Act
till the 14th December,
1959, and as the appeal was
filed on the 26th December,
1959, there is no bar of
limitation in this case...."
(emphasis added)
We are in respectful agreement with
the view taken by the Patna High
Court in the case of Dr. Sheo
Shankar Sahay.
17. In light of the discussions made
above we find the impugned order of the
Bombay High Court unsustainable. The
High Court was clearly in error not
correctly following the decision of this
Court in Tecco Trichy Engineers &
Contractors and in taking a contrary
view. The High Court overlooked that
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what section 31(5) contemplates is not
merely the delivery of any kind of a
copy of the award but a copy of the
award that is duly signed by the members
of the arbitral tribunal.
18. In the facts of the case the
appellants would appear to be deriving
undue advantage due to the omission of
the arbitrator to give them a signed
copy of the award coupled with the
supply of a copy of the award to them by
the claimant-respondent but that would
not change the legal position and it
would be wrong to tailor the law
according to the facts of a particular
case."
(ii) In case of Suryakant Bhikhabhai Hakani
Vs. Bombay Mercantile Co-op. Bank Ltd. and
Ors. reported in 2012 GLH (2) 170, it is held
as under:
"15. It is pertinent to note
that in the case of Amrutlal
Mangalji Joshi (supra), the
learned Single Judge has, by
placing reliance upon Section
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41(4)(b) of the Rules, which has
been subsequently amended, held
that the decision was required
to be sent to the party which
was absent on the date of the
pronouncement of the judgment
and decree by Registered Post
and remitted the matter to the
Tribunal to decide the delay
condonation application after
giving opportunity to the
parties. After amendment in the
said Rule in 1988, it is made
clear that the decision is
required to be communicated by
Registered Post to the party
which may be absent on the date
if due notice of the date of the
decision is not given to such
party. That means, if the party
had knowledge of the date of
decision through any source
including his Lawyer, it is not
mandatory for the Registrar or
his nominee to send his decision
by Registered Post.
16.Apart from this aspect, it
appears that the appellant was
aware about the decision way
back in 2004 when the Notice of
attachment under Section-200 of
the Bombay Land Revenue Code was
served to the appellant. The
appellant preferred an Appeal
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after two years i.e. in the year
2006 and, therefore, in absence
of sufficient ground for delay,
the Tribunal had rightly
dismissed the application for
condonation of delay. In view of
the aforesaid factual as well as
legal aspect of the matter, we
are in agreement with the
observations made by the learned
Single Judge in the impugned
judgment and order. No
interference is called for in
the impugned judgment and order
of the learned Single Judge. The
appeal is devoid of any merit
and deserves to be dismissed.
Hence, the appeal is dismissed
accordingly. There shall be no
order as to costs."
(iii) In case of Chandrakant Shankerlal Shah
Thro. POA Kantibhai P. Thakkar Vs. Liquidator
Anand Peoples Co-operatvie Bank Ltd. and Ors.
reported in 2013 (3) GLH 245, it is held as
under:
"45. In our opinion, to make
Section 102 workable, it will
have to be read harmoniously
with Rule 41. After the evidence
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is over, the nominee is to give
the decision and he may
pronounce the same in open court
either at once or on some future
date of which due notice would
be given to the parties. If the
nominee does not pronounce the
decision at once in the court
and a future date is fixed for
pronouncing the decision, the
decision is deemed to be
communicated to the parties
either by pronouncement of the
award or by registered post to
any party who may be absent on
the date if due notice of the
decision is not given to such a
party or by ordinary post with
U.P.C. to a party who may be
absent on the date if due notice
of the date of decision is given
to such a party. The
communication can be made by
pronouncing the award if both
the parties are present. In such
circumstances, perhaps there may
not be any further necessity of
complying with clause (b) and
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clause (c) of sub-rule (4) of
Rule 41.
46. The intention of the statute
appears to be to communicate the
decision to a party who may be
absent despite due notice of the
date of decision and also to a
party to whom due notice of such
decision is not given to such a
party.
47. The view which we have taken
is in conformity with the
decision in the case of
D.Saibaba (supra) to which it
appears that the attention was
not drawn of Their Lordships
while deciding the case of
Suryakant Bhikhabhai Hakani
(supra) and deserves to be
considered in light of Rule
41(4)(b) and Rule 41(4)(c). If
an advocate is presumed to have
knowledge of the pronouncement
of the award and thereby a
client is also presumed to have
knowledge about the same, then
in such circumstances, clauses
(b) and (c) will have to be
construed as if they are
applicable only in cases where
the party is not being
represented by any advocate. It
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is difficult for us to place
such a construction on plain
reading of clauses (b) and (c).
48. We also lay emphasis on the
phrase such a decision shall be
given to the parties as it
appears in Rule 41(1).
49. To the aforesaid extent, we
hold that the Division Bench
decision of this High Court in
the case of Suryakant Bhikhabhai
Hakani (supra) is per incurium
as the Supreme Court decision in
the case of D.Saibaba (supra)
has not been taken into
consideration."
5.6. Relying upon the above decisions it was
submitted that the intention of the statute
is to communicate a decision to a party who
may be absent despite due notice of the date
of decision and therefore the Tribunal ought
to have condoned the delay by giving a
chance to the petitioner to raise its
contention on merits.
6. On the other hand learned Senior Advocate
Mr.Mehul Shah with learned advocate
Mr.Nakrani submitted that the Tribunal has
given cogent reasons in support of rejecting
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the application to condone the delay.
6.1. It was submitted that the petitioner and its
advocate were present on 03.10.2011,
04.10.2011 and 18.10.2011 when the orders
were passed which is also reflected from the
rojnama placed on record by the petitioner.
It was therefore submitted that the
petitioners were aware about the proposed
date of judgment in the Lavad Case.
6.2. It was also pointed out that the advocate of
the petitioner had made an entry in the order
of the Lavad Case stating "seen" on
18.10.2011.
6.3. It was submitted that family member of the
petitioner no.3 herein had also received a
copy of the judgment and entry to that effect
is also found at the last page of the
judgment in Lavad Case and inspite of such
knowledge no reason is given for not filing
the appeal for a period of six years by the
petitioner. It was therefore submitted that
the impugned order passed rejecting the
application to condone the delay is justified
in view of the facts relevant to the
adjudication of the delay condonation
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application are not disclosed in the
application filed to condone the delay by the
petitioner before the Tribunal.
6.4. It was submitted that merely because by way
of agenda dated 14.10.2016 Special General
Assembly was proposed to be held on
25.10.2016 to discus and provide the copies
of the judgment dated 18.10.2011 passed in
Lavad Case, would not be a sufficient cause
to condone the delay because the fact of the
judgment delivered by the Board of Nominees
was well within the knowledge of the
petitioner is evident from the agenda itself.
Therefore, the fact/ averment that
application was made to the District
Registrar on 29.11.2016 and record was
received on 09.12.2016 are made to mislead
the Court.
6.5. It was therefore submitted that in view of
the facts available on record, no
interference may be made while exercising
extraordinary jurisdiction under Article 227
of the Constitution of India.
7.Considering the submissions made by both the
sides and on perusal of the material on
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record as well as rojnama prepared by the
Board of Nominees in Lavad Case which is
obtained by the petitioner under the Right To
Information Act, 2005 and placed on record.
It appears that on 03.10.2011 the respondent
filed an application to close the evidence of
the petitioner and to file written
submissions after the matter was adjourned
and prior thereto, the matter was listed on
27.09.2011 but was adjourned for evidence of
the petitioner due to the application filed
for adjournment. Thus, thereafter on
05.10.2011, the respondents filed written
statement, but no-one was present on behalf
of the petitioner and the learned advocate
for the petitioner declared that there is no
instruction by the petitioner nor made any
submissions or filed an application for
adjournment and therefore the suit was kept
for decision and adjourned on 11.10.2011. On
11.10.2011 also in presence of the advocates
of both the sides the matter was adjourned to
18.10.2011 for decision and on 18.10.2011 the
judgment and award was passed in presence of
learned advocates of both the sides as per
rojkam,therefore, the advocate for the
petitioner was aware about the pronouncement
of the judgment by the Board of Nominees on
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18.10.2011.
8.However, there is no application dated
05.10.2011 on record whereby "no instruction
purshis signed by the learned advocate of the
petitioner society is available."
9.Moreover, no order of closure of the evidence
of the petitioner society was passed by the
Board of Nominees and within fifteen days the
judgment and award was passed on 18.10.2011.
It also emerges from the record that the
person whose signature is reflected against
the receipt of a copy of a judgment i.e. one
Mr.C.H.Bhatarkar is neither the member nor
the Committee Member or the Office Bearer of
the petitioner society and therefore the
contention raised on behalf of the respondent
that copy of the judgment was served upon the
petitioner no.3 is not correct. It also
emerges from the record that nowhere it is
reflected on the copy of the judgment the
date on which it was received by
Mr.C.H.Bhatarkar.
10. In view of the above facts and
contentions raised by both the sides it would
be apposite to consider the Rule 41 of the
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Gujarat Cooperative Societies Rules, 1965
(for short "Rules")which reads as under:
"41. Procedure of hearing and decision.-
(1) The adjudicating authority shall
record a brief note in English or in
Gujarati language of the evidence of the
parties and witnesses who attend and
upon the evidence so recorded and upon
consideration of any documentary
evidences produced by either side, a
decision shall be given in accordance
with justice, enquiry and good
conscience and it shall be reduced to
writing. Such a decision shall be given
in open Court either at once or on some
future date of which due notice shall be
given to the parties.
[(2) If any of the parties duly summoned
or informed to attend, fails to appear,
the dispute may be decided in accordance
with the relevant provisions of Order IX
of the Code of Civil Procedure, 1908.]
(3) Where the adjudicating authority is
a board of nominees consisting of the
board of nominees of two nominees and if
their opinions differ regarding the
decisions, the adjudicating authority
shall return the case to the Registrar
with its notes of dissent and thereupon
the dispute may be decided by the
Registrar himself or the case may be
forwarded to a fresh board of three
nominees for decision.
(4) The decision shall be communicated
to the parties by-
(a) pronouncement of the award; or
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(b) registered post to any party which
may be absent on the date (if due notice
of the decision is not given to such
party).
[(c) Ordinary post with UPC to any party
which may be absent on the date if due
notice of the date of decision is given
to such party.]
(5) After the decision of the case, if
the adjudicating authority is a nominee
or the board of nominees it shall return
all the case papers to the Registrar."
11. On perusal of the above Rule 41 of the
Rules, it is clear that it applies to one of
the modes of communication of the decision
arrived at by the Board of Nominees to the
party is the pronouncement of the award. Out
of the two modes prescribed in the said Rule,
one is through intimation by registered post
to the party who may be absent on the date of
pronouncement, if due notice of the decision
was not given to such party or the ordinary
post with UPC to any party who may be absent
on the date despite due notice of the date of
decision was given to such a party.
12. The Division Bench of this Court in case
of Suryakant Bhikhabhai Hakani Vs. Bombay
Mercantile Co-op. Bank Ltd. and Ors
considered the application of Rule 41(4) of
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the Rules, 1965 in the facts of that case and
held that the appellant had appeared before
the Board of Nominees through his lawyer and
since the lawyer was representing the
appellant it could be presumed that he was
aware about the day to day proceedings and
the date of pronouncement of judgment and
award and therefore the party who was not
personally present could not be said to have
no knowledge about the date of the
pronouncement of the decision and therefore
the Registrar of the Board of Nominees was
not bound to communicate the decision by a
registered post to a person who was not
physically present on the date of
pronouncement. However, such view was later-
on found to be unacceptable to the Division
Bench in case of Chandrakant Shankarlal Shah
Thro. POA Kantibhai P. Thakkar Vs. Liquidator
Anand Peoples Co-operative Bank Ltd. and Ors.
In case of D.Saibaba Vs. Bar Council Of India
reported in 2003 (6) SCC 186, as the said
decision was not placed before the Division
Bench in case of Suryakant Bhikhabhai Hakani
(Supra), accordingly the decision of the
Division Bench in the said case was per in
curium by the Division Bench in case of
Chandrakant Shakarlal Shah (Supra) wherein it
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is held as under:
"43. It is a cardinal principle of
law that every party to the
litigation before an appropriate
forum is entitled to an adequate
notice about the pronouncement and
passing of a judgment or order
against him or in his favour,
particularly so, against him because
only after he comes to know of the
passing of the adverse order that he
sets in motion the process to file
an appeal against such an order. It
is essentially fair and just that
the said decision should be
communicated to such a party because
the knowledge of the party affected
by such a decision, either actual or
constructive, is an essential
element which must be satisfied
before the decision can be brought
into force. Thus considered, the
passing of an order by a forum or a
court, particularly so by a tribunal
having judicial trapping cannot
consist merely in the physical act
of writing the judgment or order or
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signing it or even consigning to
record in his office; it must hand
over the appropriate and actual
communication of such an order or
judgment to the party concerned,
especially when the judgment is
against such a party. The
communication may be either actual
or constructive. If the order is
pronounced in the presence of the
parties, whose rights are affected
by it, it can be said to be made
when pronouncing it. If the date of
the pronouncement of the order is
communicated to the party and it is
pronounced accordingly, on the date
previously communicated, the order
is said to be communicated to the
said party even if the party is not
actually present on the date of its
pronouncement. Similarly, if without
notice of the date of pronouncement,
an order is pronounced and the party
concerned, especially the party
against whom the order is
pronounced, is not present when the
pronouncement is made, the order can
be said to be made only when it is
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actually communicated to the parties
later. The knowledge of such a party
adversely affected by order, either
actual or constructive, being an
essential requirement of fair play
and natural justice, the expression
"date of the order" used in Section
102 of the Act 1961 must mean the
date when the order was either
actually communicated to the party
or was known by it either actually
or constructively.
44. In the case of Madan Lal v/s.
State of U.P., reported in AIR 1975
SC 2085, the matter regarding the
extension of time for filing an
appeal as in the present case came
up for consideration before the
Supreme Court. In that case, the
appellant in the Supreme Court had
preferred a claim under Section 6 of
the Indian Forest Act in respect of
certain plots of land. On 9th May
1955, the Forest Settlement Officer
before whom the claim was preferred
by the appellant recorded an order
under Section 11(1) of the Indian
Forest Act that the appellant had
proved his claim and directed the
Divisional Forest Officer to do the
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needful. According to the
respondents in the Supreme Court,
the aforesaid order dated 9th May
1955 made by the Forest Settlement
Officer admitting the claim of the
appellant was passed without any
notice to them and in their absence
and that they came to know about
such order only on 24th April 1956.
Section 17 of the Indian Forest Act,
relating to the filing of an appeal
from an order of Forest Settlement
Officer under Section 11 of the Act
lays down a time limit of three
months from the date of the order
for presenting such an appeal. The
order under appeal was undoubtedly
passed on 9th May 1955 and the
appeal was preferred on 20th July
1956. The respondents in the Supreme
Court, the State of U.P. wanted
three months' period for filing the
appeal to be commenced from 24th
April 1956 when it acquired the
knowledge about the passing of the
impugned order. While dealing with
the question of extension of time,
and after relying upon the previous
judgment, in para 9 of the judgment,
Their Lordships observed as under :-
"The Act we are concerned with
does not state what would happen
if the Forest Settlement Officer
made an order under Section 11
without notice to the parties
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and in their absence. In such a
case, if the aggrieved party
came to know of the order after
the expiry of the time
prescribed for presenting an
appeal from the order, would the
remedy be lost for no fault of
his ? It would be absurd to
think so. It is a fundamental
principal of justice that a
party whose rights are affected
by an order must have notice of
it. This principle is embodied
in O.XX, R.1 of the Doce of
Civil Procedure, though the
Forest Settlement Officer
adjudicating on the claims under
the Act is not a court, yet the
Principle which is really a
principle of fair play and is
applicable to all tribunals
performing judicial or quasi
judicial functions must also
apply to him. The point has been
considered and decided by this
Court in Harish Chandra V.
Deputy Land Acquisition Officer,
AIR 1961 SC 1500. This was a
case under the Land Acquisition
Act, 1894 and the court was
considering the question of
limitation under the proviso to
Section 18 of that Act. Under
Section 18 of the Land
Acquisition Act a person who has
not accepted the Collector'
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award can apply to the Collector
requiring him to refer the
matter for the determination of
the Court. This application has
to be made within six months
from the date of the Collector'
award in the case where the
person interested was not
present or represented before
the Collector at the time when
he made his award or had
received no notice from the
Collector of the award.
Construing the expression "the
date of the award" this Court
observed :
"The knowledge of the party
affected by the award,
either actual or
constructive, being an
essential requirement of
fair play and natural
justice the expression "the
date of the award" used in
the proviso must mean the
date when the award is
either communicated to the
party or known by him
either actually or
constructively. In our
opinion, therefore, it
would be unreasonable to
construe the words "from
the date of the Collector'
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award" used in the proviso
to Section 18 in a literal
or mechanical
way........... where the
rights of a person are
affected by any order and
limitation is prescribed
for the enforcement of the
remedy by the person
aggrieved against the said
order by reference to the
making of the order must
mean either actual or
constructive communication
of the said order to the
party concerned."
45. In our opinion, to make Section
102 workable, it will have to be
read harmoniously with Rule 41.
After the evidence is over, the
nominee is to give the decision and
he may pronounce the same in open
court either at once or on some
future date of which due notice
would be given to the parties. If
the nominee does not pronounce the
decision at once in the court and a
future date is fixed for pronouncing
the decision, the decision is deemed
to be communicated to the parties
either by pronouncement of the award
or by registered post to any party
who may be absent on the date if due
notice of the decision is not given
to such a party or by ordinary post
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with U.P.C. to a party who may be
absent on the date if due notice of
the date of decision is given to
such a party. The communication can
be made by pronouncing the award if
both the parties are present. In
such circumstances, perhaps there
may not be any further necessity of
complying with clause (b) and clause
(c) of sub-rule (4) of Rule 41.
46. The intention of the statute
appears to be to communicate the
decision to a party who may be
absent despite due notice of the
date of decision and also to a party
to whom due notice of such decision
is not given to such a party.
47. The view which we have taken is
in conformity with the decision in
the case of D.Saibaba (supra) to
which it appears that the attention
was not drawn of Their Lordships
while deciding the case of Suryakant
Bhikhabhai Hakani (supra) and
deserves to be considered in light
of Rule 41(4)(b) and Rule 41(4)(c).
If an advocate is presumed to have
knowledge of the pronouncement of
the award and thereby a client is
also presumed to have knowledge
about the same, then in such
circumstances, clauses (b) and (c)
will have to be construed as if they
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are applicable only in cases where
the party is not being represented
by any advocate. It is difficult for
us to place such a construction on
plain reading of clauses (b) and
(c).
48. We also lay emphasis on the
phrase such a decision shall be
given to the parties as it appears
in Rule 41(1).
49. To the aforesaid extent, we hold
that the Division Bench decision of
this High Court in the case of
Suryakant Bhikhabhai Hakani (supra)
is per incurium as the Supreme Court
decision in the case of D.Saibaba
(supra) has not been taken into
consideration."
13. In view of the above dictum of law,
the impugned order passed by the Tribunal
is quashed and set aside as the order
passed by the Board of Nominees was
constructively communicated when the same
was obtained by the petitioner under the
provision of the Right to Information
Act, 2005. The application for
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condonation of delay therefore stands
allowed and the Tribunal is directed to
hear the appeal filed by the petitioner
on merits. As the matter pertains to the
year 1988, the Tribunal is also directed
to hear the appeal within a period of six
months from the date of receipt of this
order. Rule is made absolute to the
aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J)
URIL RANA
