# India v. Rajasthan

- **Citation:** (2012) 2 ILRA 1014
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-30
- **Case number:** Civil Misc. Writ Petition No. 24853 of 1989
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/india-v-rajasthan-42278
- **Pages:** 8

## Headnote

S.C.
Sri J.S.Tomar
Sri Murlidhar
Sri Pradeep Kumar

U.P.
Urban
Building
(Regulation
of
Letting Rent and Eviction) Act 1972Section 21 (1) (a)-suit for eviction and
released-without following mandatory
provisions of serving notice upon tenantheld-incompetent-suit not maintainablenotice send through registered postwithout acknowledgement -denial of
receiving by tenant on oath-burden of
proof lies upon Land lord to produce
report regarding service of letter-in
absence of such exercise-service-can not
be preassumed upon tenant-suit rightly
dismissed
as
not
maintainable.
2 All] Brij Nandan Gupta V. III Addl. District Judge, Rampur and another
1015
Held: Para 26

In the facts and circumstance of this
case, it cannot be disputed that denial of
service of notice dated 20.9.1982 by the
tenant on oath was sufficient to rebut
presumption of service of registered
notice upon him and onus then shifted
upon the landlord to prove service. In
absence of any service of such notice,
application under Section 21(1)(a) was
not entertainable being barred by first
proviso to Section 21(1)(a) of Act, 1972.
Case law discussed:
AIR 1918 PC 102; AIR 1958 All 369; (1990) 3
SCJ 325; AIR 1990 SC 1215; AIR 1963 SC 822;
AIR 1954 Bom 159; AIR 1972 Pat 142; (2011)
3 SCC 556; AIR 1970 All 446; (2009) 5 SCC
399; (2001)8 SCC 540; (1998) 1 SCC 732;

## Text

1014 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
itself indicates scope for discretion but
that is not the case here.

23. The decision in Dharamendra
Textile must, therefore, be understood to
mean that though the application of
Section 11AC would depend upon the
existence or otherwise of the conditions
expressly stated in the section, once the
section is applicable in a case the
concerned authority would have no
discretion in quantifying the amount and
penalty must be imposed equal to the duty
determined under Sub-section (2) of
Section 11A. That is what Dharamendra
Textile decides"

14. From the proposition as laid
down in above cases, the ratio deducible
is that the quantum of the penalty equal to
the duty determined as contemplated by
Section 11AC is mandatory and there is
no discretion in the adjudicating authority
or the Tribunal to impose different
amount of penalty. In a case where
penalty is leviable under section 11AC on
fulfilment of the conditions as enumerated
in Section 11AC, the penalty equal to the
amount of duty determined is mandatory
and there is no discretion in the Tribunal
to reduce the said penalty. However, as
laid down by the apex Court in Union of
India
Vs.
Rajasthan
Spinning
and
Weaving Mills (supra), the penalty under
section 11AC can be imposed only when
conditions mentioned in Section 11AC
exist. The authorities have no discretion
in fixing the quantum of penalty and
penalty equal to the duty must be imposed
once section 11Ac is made applicable.

15. In view of the foregoing
discussions, the question of law is
answered in favour of the revenue in
following manner.

"The appellate Tribunal had no
discretion to reduce the amount of
penalty as specified under section 11
AC"

16. The appeal is allowed. Parties
shall bear their own cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 24853 of 1989

Brij Nandan Gupta

 ...Petitioner
Versus
III Addl. District Judge, Rampur and
another

 ...Respondents

Counsel for the Petitioner:
Sri A.K. Gupta
Sri B.K. Pandey
Sri B.R.Pandey
Sri K. Ajit

Counsel for the Respondents:
S.C.
Sri J.S.Tomar
Sri Murlidhar
Sri Pradeep Kumar

U.P.
Urban
Building
(Regulation
of
Letting Rent and Eviction) Act 1972Section 21 (1) (a)-suit for eviction and
released-without following mandatory
provisions of serving notice upon tenantheld-incompetent-suit not maintainablenotice send through registered postwithout acknowledgement -denial of
receiving by tenant on oath-burden of
proof lies upon Land lord to produce
report regarding service of letter-in
absence of such exercise-service-can not
be preassumed upon tenant-suit rightly
dismissed
as
not
maintainable.
2 All] Brij Nandan Gupta V. III Addl. District Judge, Rampur and another
1015
Held: Para 26

In the facts and circumstance of this
case, it cannot be disputed that denial of
service of notice dated 20.9.1982 by the
tenant on oath was sufficient to rebut
presumption of service of registered
notice upon him and onus then shifted
upon the landlord to prove service. In
absence of any service of such notice,
application under Section 21(1)(a) was
not entertainable being barred by first
proviso to Section 21(1)(a) of Act, 1972.
Case law discussed:
AIR 1918 PC 102; AIR 1958 All 369; (1990) 3
SCJ 325; AIR 1990 SC 1215; AIR 1963 SC 822;
AIR 1954 Bom 159; AIR 1972 Pat 142; (2011)
3 SCC 556; AIR 1970 All 446; (2009) 5 SCC
399; (2001)8 SCC 540; (1998) 1 SCC 732;

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri K.Ajit, learned counsel
for the petitioner. None appeared for the
respondents though the case has been
called in revised list.

2. The petitioner is purchaser of land
in dispute subsequently and the tenant
was occupying the premises in question
before such purchase. The petitioner filed
an application under Section 21(1)(a) of
Uttar
Pradesh
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 (U.P. Act No.13 of 1972)
(hereinafter referred to as "Act, 1972") for
eviction and release which was allowed
by Trial Court but the same has been
reversed by Appellate Court on the
ground that notice contemplated under
Section 21(1)(a) first proviso was not
served
upon
the
tenant,
therefore
application itself was not entertainable by
the Court below. Aggrieved by Appellate
Court order dated 16th September, 1989,
present writ petition has been filed by the
landlord petitioner.

3. It is contended that a notice was
issued
by
registered
post,
hence
presumption lie that it must have been
served upon the addressee in view of
Section 114 (g) of Indian Evidence Act,
1872 (hereinafter referred to as "Act,
1872"), and, the Revisional Court has
committed a patent error of law in not
appreciating the above provision and its
legal consequence.

4. In order to appreciate the above
contention and correctness of the judgment
of the Appellate Court, it would be pertinent
to have a bird eye view to the relevant facts
in brief.

5. The respondent -tenant was
occupying first floor of the house in dispute
namely a residential house situated at
Rajdwara Road, Rampur owned by one Sri
Jagat
Prakash
Gupta
Son
of
Sri
Raghunandan Prasad, R/o Moh. Jain
Mandir Rampur since before 1981. The
petitioner purchased aforesaid house from
erstwhile owner Sri Jagan Prakash Gupta
through a registered sale deed dated 13th
April, 1981. The petitioner sent a registered
notice dated 20th September, 1982 (by
Registered Post, Acknowledgement Due) to
the respondent tenant Radhey Shyam
Bhatiya (since deceased and now his legal
heirs are substituted as respondents No.2/1
to 2/6) informing him about transfer of
ownership to the petitioner and putting him
on notice of six months to vacate the
premises and hand over vacant possession
to petitioner. Another notice of the same
date i.e. dated 20.9.1982 is said to have
been sent by petitioner informing the
respondent tenant to pay rent to the
petitioner since he has purchased the house
in question. This notice is also said to have
been
sent
by
registered
post
acknowledgement due.
1016 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

6. It is alleged that respondent tenant
stopped payment of rent whereafter another
notice was given on 8.11.1982 terminating
his tenancy on expiry of 30 days since he
was in arrears of rent having not paid the
same from 13th April, 1981 to 31st
October, 1982 and onwards. A forth notice
issued on 12.12.1983 by petitioner through
his counsel Sri R.C.Srivastava determining
tenancy of respondent-tenant and asking
him to hand over vacant possession of
premises to petitioner. Thereafter an
application under Section 21(1)(a) of Act,
1972 was filed before Prescribed Authority,
Rampur registered as P.A. Case No.13 of
1984.

7. On the part of respondent-tenat, it is
claimed that rent was regularly paid to the
owner of house in question. He has also
pleaded that after the death of owner of the
house in question namely Raghunandan
Prasad and a number of legal heirs came to
own
property
therefore
petitioner's
contention that Sri Jagat Prasad Gupta was
the sole owner of accommodation in
question and could have sold the entire
accommodation in his own rights to the
petitioner is not correct. The receipt of
notices dated 8.11.1982 on 12.12.1983 was
admitted. It is also said that the notice was
replied by tenant on 10.12.1982 wherein he
informed of a serious doubt regarding
genuinity of ownership of petitioner and
said that he would deposit rent in Court.
Subsequently
vide
application
under
Section 30(2) of Act, 1972 registered as
Misc. Case No.17/83 (Radhey Shyam Vs.
Brij Nandan Gupta), rent was deposited in
the Court and the said matter is pending. It
was also admitted that notice dated
12.12.1983 was received on 14.12.1983 and
was
also
replied
on
14.1.1984
acknowledged by petitioner on 17.1.1984.
A notice dated 25.2.1983 was received from
one Sri Ashwani Kumar Son of Sri
Rajendra
Prasad
and
grand
son
of
Raghunandan Prasad asking the tenant to
pay rent of the disputed accommodation to
him and not to any other person.

8. The Trial Court after exchange of
pleading and evidence etc. formulated five
issues as under:

^^1- D;k izkFkhZ fookfnr edku dk yS.M ykMZ gSA^^

"1. Whether applicant is landlord of
house in dispute."

^^2- D;k ;g okn /kkjk 21 ¿,À ds izkostks ds }kjk
okafNr uksfVl u fn;s tkus ds dkj.k nks"k iw.kZ gSA^^

"2. Whether this case is bad due to non
service of prescribed notice under Proviso
to Section 21(a)."

^^3- D;k fookfnr edku dhs izkFkhZ dks okLrfod
,oa ln~Hkkoukiw.kZ vko';drk gSA^^

"3. Whether the applicant is in real
and bona fide need of the house in dispute."

"4- D;k rqyukRed dfBukbZ dk fl)kar izkFkhZ ds
i{k esa gSA^^

"4. Whether principle of comparative
hardship is in favour of the applicant."

^^5- D;k izkFkhZ dksbZ vuqrks"k izkIr djus dk
vf/kdkjh gSA^^

"5. Whether applicant is entitled for
any relief."

(English Translation by the Court)

9. The issue No.1 was decided vide
Prescribed Authority's judgment dated
7.10.1988 in favour of petitioner holding
him landlord within the definition of
2 All] Brij Nandan Gupta V. III Addl. District Judge, Rampur and another
1017
"landlord" under section 3(j) of Act, 1972.
Similarly issue no. 2 was also decided in his
favour holding that a valid notice under
Section 21(1)(a) was issued and tenant
failed to prove its non service. Having said
so, issues No.3 and 4 relating to bona fide
need an comparative hardship were also
determined in favour of the petitionerlandlord and as a result whereof the suit was
decreed. The accommodation in question
was released in favour of petitioner-
landlord and tenant was directed to hand
over
possession
of
the
vacant
accommodation to the petitioner-landlord.

10.

Aggrieved
by
Prescribed
Authority's judgment dated 7.10.1988, the
respondent -tenant preferred Rent Control
Appeal No.103 of 1988. The appellate
Court
decided
vide
judgment
dated
16.9.1989 confirming findings of Trial
Court on issue No.1 in favour of the
petitioner-landlord.

11. The second question argued before
it at length was non compliance of
requirement of giving notice under Section
21(1)(a) i.e. issue No.2. It is this issue which
has been answered in favour of tenant and
the findings of Trial Court on issue No.2
have been reversed by lower Appellate
Court. In respect to issues No.3 and 4,
namely bona fide need and comparative
hardship, the lower Appellate Court has
observed that in view of subsequent events
namely death of petitioner-landlord, elder
son, for whose benefit the need was stressed
in the application got mitigated also for the
reason that he can get further construction
on the accommodation he already possessed
separately, and that is how can meet his
requirement. The Lower Appellate Court
held that compelling need of landlord no
more survive which would justify eviction
of tenant from accommodation in question.
Though findings on issues No.3 and 4,
recorded by lower Appellate Court are
based on irrelevant considerations and
cannot be sustained in law in view of this
Court but since issue no.2 goes to the root
of the matter wherein this Court finds that
the lower Appellate Court was justified in
holding
that
no
valid
notice
was
demonstrated to have been served upon the
tenant as contemplated in Section 21(1)(a),
therefore application under Section 21(1)(a)
itself was not maintainable, this court finds
no reason to go on for recording a final
opinion on issues No.3 and 4.

12. Where a property is already in
occupation of a tenant before its purchase
by another person, an application for release
of such building under Section 21(1)(a)
cannot be filed unless conditions provided
in proviso thereto are satisfied. It reads as
under:

"Provided that where the building was
in the occupation of a tenant since before its
purchase by the landlord, such purchase
being made after the commencement of this
Act, no application shall be entertained on
the grounds, mentioned in clause (a), unless
a period of three years has elapsed since the
date of such purchase and the landlord has
given a notice in that behalf to the tenant
not less than six months before such
application, and such notice may be given
even before the expiration of the aforesaid
period of three years."

13. A perusal of the above shows that
there is a restriction upon the Prescribed
Authority to entertain the application on the
grounds mentioned in Section 21(1)(a);

(a) unless the purchaser landlord show
that period of three years has elapsed since
the date of such purchase; and
1018 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

(b) The landlord has given a notice in
that behalf to the said tenant not less than
six months before such application.

14. The proviso however permits
issuance of notice to the tenant even before
expiry of three years but it must be six
month notice and application under Section
21(1)(a) shall be entertained only after
expiry of three years from the date of
purchase.

15. In the present case, petitioner
landlord purchased building in question on
13.4.1981 and filed application before
Prescribed Authority in May, 1984, to be
more precise 11th May, 1984. The
application therefore was filed after expiry
of three years and twenty seven days from
the date of purchase. The landlord claims
that six months' notice, as contemplated in
proviso to Section 21(1)(a) was given to the
tenant on 20th September, 1982. The said
notice was put in transmission for onwards
service upon the tenant by registered post
acknowledgement due. Two other notices
dated 8.11.1982 and 12.12.1983 sent by
petitioner landlord for termination of
tenancy have been acknowledged by the
tenant but he has seriously disputed
receipt/service of the notice dated 20th
September, 1982 which the landlord alleged
as compliance of Section 21(1)(a) first
proviso of Act, 1972. If this notice was not
served upon tenant, an application under
Section 21)1)(a) was not entertainable by
Prescribed Authority at all. It is a
jurisdictional question and therefore has to
be proved by landlord beyond doubt by
adducing relevant evidence.

16. On behalf of landlord it is
contended that evidence adduced to draw an
inference of service upon the tenant was
"receipt of registered post" and copy of the
registered notice. It is contended that once a
registered letter has been sent which
mentions correct address of the addressee,
presumption is that it must have reached the
addressee
unless
proved
otherwise.
Therefore onus to show that the said notice
was not received by tenant lie on him which
he failed to discharge.

17. In my view, this contention of Sri
K.Ajit,
Advocate
is
thoroughly
misconceived. Presumption under Section
114(g) of the Evidence Act is rebuttable.
Once the addressee deny receipt/service of
registered letter, the addresser has the onus
to show that it was actually served received
upon or received by the addressee or he
refused to receive the same though sought
to be served upon him by the postal agent.
In the present case no such evidence has
been adduced by petitioner landlord to
discharge initial onus lie upon him once
service/receipt of notice dated 10.9.1982
was denied by respondent-tenant not only in
his written statement but also by filing an
affidavit before the Courts below.

18. Here is not a case where either
acknowledgement was received by the
landlord containing signature of tenant or
that
letter/notice
was
received
with
endorsement of Postman that it was refused
by the tenant. In fact neither registered letter
was received back by the landlord nor
acknowledgement was received by him. It
is in these circumstances presumption that
letter sent by registered post at the correct
address must be deemed to have been
served upon the tenant and denial of tenant
about its service/receipt itself would not be
sufficient unless he prove otherwise would
not lie and this is not the correct approach to
answer the problem.
2 All] Brij Nandan Gupta V. III Addl. District Judge, Rampur and another
1019

19. It cannot be doubted that
presumption of certain facts as illustrated in
Section 114 is stronger when a letter is sent
by registered post to the addressee. (See
Harihar Benerji Vs. Ram Sahai Rai, AIR
1918 PC 102; and Balgovind Vs.
Bhargova Book Depot, AIR 1958 All
369).

20. It also cannot be disputed, if a
notice is sent by landlord to the tenant by
registered post and acknowledgement is
received back by the landlord containing
signature of the tenant, presumption of
service would have to be drawn against the
tenant unless tenant prove otherwise by
adducing relevant evidence as held in
Green View Radio Service Vs. Laxmibai
Ramji, (1990) 3 SCJ 325.

21. Similarly, if a notice has been sent
by landlord by registered post and it is
received back with an endorsement made
by an official of Post Office namely
Postman that it was refused by the addresee,
presumption of service upon addressee shall
be drawn unless the tenant prove that the
letter was never offered to him by the
Postman and endorsement made thereon is
not correct. The tenant's bare denial would
not be sufficient in such a case and he will
have to prove his case by adducing relevant
evidence. Such denial can be by making
statement on oath and in such case onus
would shift on the landlord to prove that
refusal was by the tenant which he can
show by summoning the postman and
adducing his oral evidence. However, this is
one aspect of the matter. Sometimes from
the
conduct
of
tenant
or
other
circumstances, his denial even if on oath,
can justifiably be disproved by the Court
without having Postman examined. There is
no hard and fast rule on this aspect as
observed by the Apex Court in Anil
Kumar Vs. Nanak Chandra Verma, AIR
1990 SC 1215.

22. But these cases however have no
application to the present case for the
simple reason that here neither any third
party intimation is available with the
landlord that the tenant was served with the
notice but he declined to receive the same
nor acknowledgement has received/come in
the hands of landlord containing signature
of tenant to show its service. The only thing
available in the present case is the fact that a
registered letter with acknowledgement due
sent by landlord to the tenant on correct
address. In such a case tenant's bare denial
supported with an affidavit is sufficient
rebuttal
unless
proved
otherwise
by
landlord. Without anything further namely
availability of acknowledgement containing
signature of tenant or the postal agent's
endorsement of refusal etc., the addressee
may rebut the presumption by making
statement on oath denying service of the
registered letter. I need not to burden this
judgment with the catena of decisions on
this aspect except simply referring to a few
one namely Radha Kishan Vs. State of
U.P., AIR 1963 SC 822; Appa Bhai Moti
Bhai Vs. Lakshmi Chand Zaver Chand,
AIR 1954 Bom 159 and Ram August Vs.
Vindeshwari, AIR 1972 Pat 142 which
fortify the view I have taken hereinabove.

23. Thus onus lie upon the landlord to
prove his case by producing the best
evidence. Under the Post Office Act, if
addresser of a registered letter makes
enquiry from Post Office about service of
registered letter upon addressee, he could
have received a reply therefrom and that
could have been an evidence of service of
notice. Similarly, the Postman could have
been examined by summoning him.
1020 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Unfortunately the landlord has chosen to
follow non of these.

24. Learned counsel for the petitioner
has relied on Apex Court's decision in
Samittri Devi & Anr. Vs. Sampuran
Singh & Anr. (2011) 3 SCC 556. The
Court has observed therein that a letter if
sent on a correct address and its certificate
of posting has been received from the Post
Office, presumption can be drawn that in
normal course of business it would have
been served upon the addressee in absence
of any pleading alleging anything otherwise
in respect to the certificate of posting or
denial of the addressee about its service.
The Apex Court relied and referred to an
earlier decision of the Privy Council in
Harihar Banerji Vs. Ramsashi Roy,
(supra) and Full Bench judgment of this
Court in Ganga Ram Vs. Phulwati, AIR
1970 All 446. The question of presumption
under Section 114 in this case is not the
core issue in the matter. Moreover the Court
also said that service if denied by addressee
the position would be different. But here is
a case where addressee has specifically
come up with a case that he was never
served with the alleged notice and has
sworn the above statement on oath. It is in
this background the question is whether
presumption of service is conclusive or it is
so strong that a bare denial of tenant is not
sufficient unless he further prove it.
Obviously a negative fact would not be
required to be proved. In such cases, in
absence of anything further, the landlord
would have to prove the factum of service
of notice by adducing positive evidence
since presumption under Section 114 is
rebuttable.
The
aforesaid
judgment
therefore lends no help to the petitioner
since there was no denial of service of
notice by the addressee.

25. So far as rigour of proviso to
Section 21(1)(a) is concerned, that notice is
mandatory. The issue is squarely covered
by Apex Court's decision in Nirbhai
Kumar Vs. Maya Devi & Ors. (2009) 5
SCC 399 wherein the three Judge Bench of
Apex court has held that it is mandatory and
has overruled its earlier decision in Anwar
Hasan Khan Vs. Mohd. Shafi, (2001) 8
SCC 540. An earlier two judge Bench
judgment in Martin & Harris Ltd. Vs.
Vith Additional Distt. Judge & Ors.
(1998) 1 SCC 732 has been affirmed by the
larger Bench of Apex Court in Nirbhai
Kumar (supra).

26. In the facts and circumstance of
this case, it cannot be disputed that denial of
service of notice dated 20.9.1982 by the
tenant on oath was sufficient to rebut
presumption of service of registered notice
upon him and onus then shifted upon the
landlord to prove service. In absence of any
service of such notice, application under
Section 21(1)(a) was not entertainable being
barred by first proviso to Section 21(1)(a) of
Act, 1972.

27. The discussion above led to
inescapable inference that the Lower
Appellate Court's findings on issue No.2
that notice under Section 21(1)(a) first
proviso having not been served upon the
tenant, application was not competent and
not maintainable cannot said to be faulty
legally or otherwise. Hence it warrants no
interference.

28. The writ petition lacks merit.
Dismissed with costs which I quantify to
Rs.5,000/-.
---------
2 All] Smt. Manmohan Kaur V. Additional Commissioner (J) Bareilly and others
1021
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition no. 13747 of 1995

Smt. Manmohan Kaur

 ...Petitioner
Versus
Additional Commissioner (J) Bareilly and
others

 ...Respondents

Counsel for the Petitioner:
Sri S.D. Pathak
Sri D.Pathak
Sri Rakesh Pathak

Counsel for the Respondents:
S.C.

Constitution
of
India,
Article
226Requirement
of
recording
reasonsrejection of Section 5 Application as well
as dismissal of Appeal-without disclosing
any
reasons
for
unsatisfactory
explanation for condonation of delaysimilarly dismissal of earlier appeal-heldwithout
considering
the
impact
of
dismissal
of
earlier
appeal
without
recording any reason of non-satisfactionorder impugned-unsustainable delay in
filling appeal condoned-direction issue to
decide appeal on its merit.

Held: Para 8

Having perused the pleadings on record
as also the impugned order, no reasons
have
been
given
by
the
appellate
authority as to why the explanation
given by the petitioner for delay in filing
the appeal was not satisfactory and it is
primarily on this ground that the appeal
has been held to be not maintainable as
barred by time. The dismissal of another
appeal has been stated by way of a fact
in the order. There is no indication as to
how the said dismissal governs the
appeal filed by the petitioner and as to
what is the impact of the said order in
another appeal.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard Shri S.D. Pathak, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. This writ petition arises out of
proceedings under the U.P. Imposition of
Ceiling on Land Holdings Act, 1960. The
Prescribed Authority proceeded in the
matter and vide order dated 21st of
March, 1994 declared certain land as
surplus.

3. The petitioner claiming herself to
be a divorced wife of Gurubachan Singh
filed an appeal against the said order on
the ground that she had no knowledge of
the said order.

4. The appeal was filed on 31st
March, 1995. An application under
Section 5 of the Indian Limitation Act
was filed supported by an affidavit, a
copy whereof has been filed along with
writ petition as Annexure No. 2. The
petitioner disclosed reasons about the
non-filing of the appeal within time and
also the date of knowledge whereafter the
learned counsel for the petitioner made an
inspection of the file and accordingly
instituted the appeal.

5.

The
learned
Additional
Commissioner has dismissed the appeal
on two grounds namely, the explanation
given by the petitioner in support of the
Section 5, application does not appear to
be
satisfactory
and
even
otherwise
another appeal against the same order had
already been dismissed.