Alok Singh, J.�Present petition is filed assailing the order dated 5.7.2013 passed by District Judge, Nainital, whereby learned District Judge, Nainital was pleased to condone the delay of more than 13 years in filing the appeal under Section 9 of U.P. Public Premises Act. Brief facts of the present case, inter alia, are that on the application of respondent, herein, learned Prescribed Authority was pleased to issue notices to the petitioners under Section 4 of the U.P. Public Premises Act, however, ultimately, learned Prescribed Authority, vide judgment dated 30.6.1998, was pleased to reject the notices issued under Section 4 of the Act. Thereafter, respondent, herein, on 9.8.2013 filed an appeal under Section 9 of the U.P. Public Premises Act, assailing the judgment and order dated 30.6.1998 passed by the Prescribed Authority dismissing/rejecting the notices issued against the petitioners under Section 4 of the U.P. Public Premises Act, along with the application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal, which was allowed by the impugned judgment.
2. I have heard Mr. Anirudh Bhatt, learned counsel for the petitioners and Mr. B.D. Pande, learned counsel for the respondent, and have carefully perused the record.
3. Mr. Anirudh Bhatt, learned counsel appearing for the petitioners submits that appeal itself was not maintainable under Section 9 of the U.P. Public Premises Act, therefore, learned Appellate Court was absolutely not having any jurisdiction to condone the delay under Section 5 of the Limitation Act in filing the appeal, which itself was not maintainable.
4. To appreciate this submission made by Mr. Anirudh Bhatt, learned counsel for the petitioner, Sections 5, 7 and 9 of the U.P. Public Premises Act are being reproduced hereunder:
"5. Eviction of unauthorised occupants.--(1) If, after considering the cause. if :any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the Prescribed Authority is satisfied that- the public premises are in unauthorised occupation the Prescribed Authority may make an order of eviction for reason to be recorded therein, directing, that the public premises shall be vacated. on such date as may be specified the order, by-all persons who may be in occupation thereof, or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.
(2) If any person refuses or fails to comply with the order of eviction within thirty days of the date for its publication under Sub-section (1), the Prescribed Authority or any other officer duly authorised by the Prescribed Authority in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force, as may be necessary.
* * *
7. Power to require payment of rent or damages in respect of public premises.--
(1) Where any person is in arrears of rent for four months payable in respect of any public premises, the Prescribed Authority may, by order, require that person to pay the same within such time and in such installments as may be specified in the order, and on the failure of such person to pay the same or any installments thereof, he shall be deemed to be in unauthorised occupation of The public premises.
(2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the Prescribed Authority may, having regard to such principles of assessment of damages as may be prescribed assess he amount of damages on account of the use and occupation of such premises and may by order, require that person to pay the amount within such time and in such installment as may be specified in the order.
(3) No order under Sub-section (1) or Sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon whom to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any, the evidence he may produce in support of the same have been considered by the Prescribed Authority.
* * *
9. Appeals.--(1) An appeal shall lie from every order of the Prescribed Authority made in respect of any public premises under Section 5 or Section 7 to an Appellate Officer who shall be the District Judge of the district in which the public premises are situate or; such other Judicial Officer not below the rank of Civil Judge as the District Judge may designate in this behalf.
(2) An appeal under Sub-section (1) shall be preferred-
(a) in the case of an appeal from an order under Section 5, within fifteen days from the date of publication of the order under Sub-section (1) of that section; and
(b) in the case of an appeal from an order under Section 7, within fifteen days from the date on which the order is communicated to the appellant:
Provided that the Appellate officer may entertain the appeal after the expiry of the said period of fifteen days, if he is satisfied that the appellant was prevented by sufficient cause from filling the appeal in time.
(3) Where an appeal is preferred from an order of the Prescribed Authority the Appellate Officer may stay the enforcement of that order for such period and on such conditions as he deems fit.
(4) Every appeal under this section shall be disposed of by the Appellate Officer as expeditiously as possible.
(5) The cost of any appeal under this section shall be in the discretion of the Appellate Officer.
(6) The District Judge may withdraw any appeal pending with any Judicial Officer referred to In Sub-section (I) and either dispose of the same or transfer It to any other Judicial Officer referred to In that sub-section."
5. Perusal of Section 9 would reveal that an appeal shall lie from every order of the Prescribed Authority made in respect of any public premises under Section 5 or Section 7 of the Act. Perusal of Section 5 would reveal that learned Prescribed Authority, if he is satisfied, shall pass an order of eviction for the reasons to be recorded therein directing the unauthorized occupant to be evicted while Section 7 of the Act would demonstrate that Prescribed Authority may direct any person to pay the arrears of rent within such and such time.
6. In the present case, neither order of eviction was passed nor direction was issued to pay the arrears of rent rather notice issued under Section 4 of the Act was rejected. Therefore, appeal under Section 9 was not maintainable.
7. In my considered opinion, if appeal itself is not maintainable, then application under Section 5 of the Limitation Act seeking condonation of delay in filing the non-maintainable appeal itself will not be maintainable.
8. Moreover, perusal of the application under Section 5 of Limitation Act does not explain the delay of more than 13 years in moving the appeal except the casual allegation that department could not acquire knowledge about the dismissal of the case by the Prescribed Authority. Therefore, impugned order does not sustain in the eyes of law. Consequently writ petition is allowed. Impugned order is hereby quashed.
