2012(6) ALL MR 85
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

A.S. OKA AND S.P. DESHMUKH, JJ.

Ramchandra Manikrao Patil Vs. The State Of Maharashtra & Ors.

Writ Petition No.3968 of 2012

9th May, 2012

Petitioner Counsel: Shri U.B. BILOLIKAR
Respondent Counsel: Shri V.H. DIGHE

(A) Bombay Highways Act (1955) Ss.24, 23 - Appeal - Filing of - Starting point of limitation - Period of seven days for filing appeal will have to be reckoned from date on which notice u/s.23(1) is served upon person who is called upon to remove encroachment - Date of issuance of notice will not be starting point of limitation - Appeal filed within 7 days from date of service of notice, within limitation. (Para 6)

(B) Bombay Highways Act (1955) Ss.24, 23 - Appeal - Limitation - Appeal is to be filed within 7 days from date of service of notice u/s.23(1) - Notice to remove encroachment u/s.23(1) served on 22-4-12, though issued on 12-4-2012 - Appeal filed on 27-4-2012 being filed within 7 days from date of service of notice, within limitation. (Paras 6, 7)

JUDGMENT

A. S. OKA, J. :- Heard learned counsel for the parties. Rule. Learned AGP waives service of Rule notice for the respondents. Petition is taken up for hearing forthwith.

2. The petitioner was served with notice under Section 23 of the Bombay Highways Act, 1955 (hereinafter referred to as the said Act). The date of the notice is 12th April, 2012. It is averred in the petition that the said notice was served to the petitioner's tenant on 22nd April, 2012 which was received by the petitioner on 23rd April, 2012. An appeal was preferred by the petitioner against the said notice by invoking Section 24 of the said Act. The appeal was filed on 27th April, 2012.

3. By order dated 27th April, 2012, the District Collector who is the appellate authority held that the appeal ought to have been preferred within a period of seven days from the date of notice i.e. from 12th April, 2012. He held that as the appeal was preferred on 27th April, 2012, the same was barred by limitation.

4. We have heard the learned counsel appearing for the petitioner. He submits that the appeal was preferred within seven days from the date of service of notice and, therefore, the same was within limitation. The learned AGP supported the impugned order. He submitted that in the memorandum of appeal, the petitioner has not disclosed the date on which the notice under Section 23 of the said Act was served to him. He submitted that there was no application made for condonation of delay.

5. We have given careful consideration to the submissions. Sub-section (1) of Section 23 of the said Act confers power on the highway authority or the authorized officer to serve notice on the person responsible for encroachment on a highway requiring him to remove the encroachment and restore the land to its original condition before the encroachment within the period specified in the notice. Sub-section (3) confers power on the highway authority or on the authorized officer as the case may be, to prosecute a person who has failed to remove the encroachment within the specified time. Section 24 of the said Act provides for appeal which reads thus:

"Where the person on whom notice to remove an encroachment has been served under sub-section (1) of Section 23 lays claim that the land in respect of which encroachment has been alleged is his property or that he has acquired a right over it by virtue of adverse possession or otherwise he shall within the time-limit prescribed in the notice for the removal of the encroachment, file an appeal before the Collector under intimation to the Highway Authority or the officer authorized under sub-section (1) of Section 21, as the case may be. The Collector shall after due enquiry record his decision in writing and communicate the same to the appellant and the Highway Authority or such officer. The Highway Authority to such officer shall till then desist from taking further action in the matter."

6. Section 24 of the said Act prescribes period of limitation for preferring an appeal. It provides that the appeal shall be preferred within the time limit prescribed in the notice for removal of encroachment. Now coming back to the facts of the case, there is a statement on oath in paragraph no.6 of the petition that the notice under Section 23(1) which is under challenge was served to the petitioner's tenant on 22nd April, 2012 and the same was received by him on 23rd April, 2012. The notice states that seven days time is given to the petitioner to remove the alleged encroachment on his own. Thus, in the present case the time granted to remove the encroachment is of seven days. It is obvious that the said period of seven days will have to be reckoned from the date on which notice under Section 23(1) is served upon the person who is called upon to remove the encroachment. Even Section 24 does not provide that the date of issue of notice will be the starting point of limitation. Thus, for the purposes of computing limitation under Section 24 of the said Act, the starting point of the limitation will be the date on which notice under Section 23(1) is served to the person to whom the notice is addressed.

7. The date of service of notice set out in the petition is not disputed. Therefore, in the present case the appeal was preferred within limitation. When such appeals are preferred under Section 24 of the said Act, it is advisable that while accepting the appeals, the concerned officer in the office of the Collector should ensure that the date of service of notice under Section 23(1) is incorporated in the appeal so that passing of orders, such as the impugned order in the present case, can be avoided.

8. Hence, we pass the following order :-

[i] We direct the appellate authority to entertain the appeal and to decide the same expeditiously.

[ii] As provided in Section 24 of the said Act, the highway authority shall desist from taking further action till the appeal is decided.

[iii] If the decision in the appeal be adverse to the petitioner, the notice under Section (1) of the said Act shall not be acted upon for a period of 15 days from the date on which order of the appellate authority is served to the petitioner.

[iv] We make it very clear that we have made no adjudication on merits of the controversy involved in the appeal.

[v] Rule is made absolute on the aforesaid terms with no order as to costs.

[vi] The parties to act on the authenticated copy of this order.

Ordered accordingly.