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Ishrat Ali @ Babboo v. State Of U.P. And Others - WRIT - C No. 9548 of 2007  RD-AH 2967 (22 February 2007)
Hon'ble Ashok Bhushan, J.
Heard counsel for the petitioner and the learned standing counsel. By consent of parties the writ petition is being finally disposed of without inviting counter affidavit.
This writ petition has been filed against the order dated 15.1.2007 passed by the Commissioner, Kanpur Division, Kanpur rejecting the application of the petitioner U/s 5 of the Limitation Act filed in support of an appeal U/S 18 of the Arms Act. An order was passed on 16.11.2006 cancelling the arm licence of the petitioner. An appeal was filed on 27.12.2006. The limitation for filing the appeal is one month. There was delay of about 12 days in filing the appeal. Along with the appeal an application u/s 5 of the Limitation Act was filed for condonation of delay giving reasons for condonation of delay. The appellate authority dismissed the application u/s 5 of the Limitation Act.
I have considered the submissions and perused the record.
Affidavit was filed by brother of the writ petitioner in support of Sec. 5 application in which it written statement specifically mentioned that the petitioner is in jail hence the affidavit is being filed by Musarrat Ali. Further, it was stated that the appellant came to know about the order only on 20.12.2006 and the certified copy was obtained on 21.12.2006 and the appeal has been filed on 27.12.2006. The appellate authority has not disbelieved the statement in the affidavit that the appellant came to know about the order on 20.12.2006 and the appeal was filed on 27.12.2006. One week's time was taken in obtaining the certified copy of order and preparing the appeal which cannot be said to be unreasonable. Delay of 11-12 days was not sufficient for rejecting the delay condonation application. In view of the affidavit filed in support of the delay condonation application which is not said to be controverted on behalf of the respondents, the appellate authority committed error in rejecting the application for condonation of delay. The order dated 15.1.2007 cannot be sustained and is hereby set aside. The delay in filing the appeal is condoned . Let the appeal of the writ petitioner be registered and decided in accordance with law.
The writ petition is disposed of disposed of summarily.
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