NAZIR AHMAD MALIK WP(C) No. 1346 of 2023 · High Court of Jammu & Kashmir and Ladakh

Through: Mr. Z. A. Qureshi, Sr. Adv. with Ms. Razia Amin, Adv. V/s UT of J&K and Ors. ….. Respondent(s) Through: Mr. T. M. Shamshi, DSGI. Mr. Shabaz Sikander, Adv. CORAM: Hon’ble Mr. Justice Sanjay Dhar, Judge. ORDER 05.06.2023

The only grievance projected by the petitioner in this petition is that respondent No. 2 has, instead of sending the appeal filed by the petitioner against his order to the appellate authority, returned the same to the petitioner.

Issue notice to respondents.

Mr. T. M. Shamshi, learned DSGI and Mr. Shabaz Sikander, Advocate enter appearance and accept notice on behalf of respondents.

Having regard to limited controversy involved in this petition, the same is taken up for disposal at the threshold itself.

In the context of this case, the provisions contained in Section 340 and 341 of the Cantonments Act, 2006, which provide the procedure for filing of appeal, are required to be noticed. The same read as under: P a g e | 2 WP(C) No. 1346/2023

Appeals from executive orders.—(1) Any person aggrieved by any order described in the third column of Schedule V may appeal to the appellate authority specified in that behalf in the fourth column of the said Schedule. (2) The Central Government may, for the purposes of expeditious disposal of the pending appeals, by notification in the Official Gazette, amend Schedule V so as to designate additional appellate authority in the fourth column of the said Schedule. (3) No such appeal shall be admitted if it is made after the expiry of the period specified in that behalf in the fifth column of the said Schedule. (4) The period specified as aforesaid shall be computed in accordance with the provisions of the Limitation Act, 1963 (36 of 1963), with respect to the computation of periods of limitation thereunder.

Petition of Appeal.—(1) Every appeal under section 340 shall be made by petition in writing accompanied by a copy of the order appealed against. (2) Any such petition may be presented to the authority which made the order against which the appeal is made, and that authority shall be bound to forward it to the appellate authority, and may attach thereto any report which it may desire to make by way of explanation

From a perusal of aforesaid provisions, it is clear that the order described in third column of Schedule V is appealable. The appellate authority is specified in 4th column of said schedule. The period prescribed for filing of said appeal is provided in 5th column of the said Schedule. It is also provided that the appeal has to be presented before the authority which has made the order against which appeal is to be filed and thereafter the said authority is bound to forward it to the appellate authority.

In the instant case, the petitioner has filed the appeal against the order passed by respondent No. 2 on 19.01.2023 whereby the petitioner has been directed not to carry out any construction activity. It seems that the petitioner had forwarded the appeal vide communication dated 13.03.2023 to respondent P a g e | 3 WP(C) No. 1346/2023 No. 2 but the said respondent, has instead of sending it to the appellate authority, returned the same to the petitioner. As already noted, as per Section 341 of the Cantonment Act, it was bounden duty of respondent No. 2 to send the appeal to the appellate authority and not to return it to the petitioner. Therefore, the action of returning the appeal to the petitioner is not in accordance with law and the same is liable to be set aside.

Disposed of as above. SRINAGAR 05.06.2023 “Aasif” (Sanjay Dhar) Judge