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. 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ramchandra Manikrao Patil Vs. The State of Maharashtra
CORAM: A.S. OKA &
SUNIL P. DESHMUKH, JJ.
WRIT PETITION NO.3968/2012
DATE: 09.05.2012
Citation : 2012(5)MH.L.J. 296
ORAL JUDGMENT (Per A.S. Ok
a, J.) :
1] Heard learned counsel for the parties. Rule. Learned AGP waives service
of Rule notice for the respondents. Petition is taken up for hearing forthwith. WP 3968/12
- 2 -
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 WP 3968/12
- 3 -
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 subsection (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 WP 3968/12
- 4 -
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 WP 3968/12
- 5 -
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.
(SUNIL P. DESHMUKH, J.) (A.S. OKA, J.)
ndk/c95121
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. 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ramchandra Manikrao Patil Vs. The State of Maharashtra
CORAM: A.S. OKA &
SUNIL P. DESHMUKH, JJ.
WRIT PETITION NO.3968/2012
DATE: 09.05.2012
Citation : 2012(5)MH.L.J. 296
ORAL JUDGMENT (Per A.S. Ok
a, J.) :
1] Heard learned counsel for the parties. Rule. Learned AGP waives service
of Rule notice for the respondents. Petition is taken up for hearing forthwith. WP 3968/12
- 2 -
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 WP 3968/12
- 3 -
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 subsection (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 WP 3968/12
- 4 -
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 WP 3968/12
- 5 -
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.
(SUNIL P. DESHMUKH, J.) (A.S. OKA, J.)
ndk/c95121
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