Rajasthan High Court - Jodhpur
Parmeshwar Lal Agarwal vs State Of Rajasthan on 2 December, 2021
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5878/2019
Parmeshwar Lal Agarwal S/o Shri S L Agarwal, Aged About 62
Years, Banswada, At Present Sukher, Udaipur (Rajasthan).
----Petitioner
Versus
1. State Of Rajasthan, Through The Joint Secretary, Mines
Geology Department, Secretariat, Jaipur.
2. The Additional Director (Environment And Development),
Directorate Of Mines And Geology, Udaipur.
3. The Mining Engineer, Mines And Geology Department,
Banswada.
----Respondents
For Petitioner(s) : Mr. Arvind Shrimali
For Respondent(s) : Mr. Digvijay Singh Jasol
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
02/12/2021
1. Instant writ petition lays challenge to the order dated
19.07.2018, passed by Appellate Authority, whereby, petitioner's
appeal against the order dated 24.01.2017 passed by the
respondent No.1, has been rejected on the ground of delay.
2. For the purpose of narration of facts, suffice it to mention
that the petitioner had preferred an appeal under Rule 63(4) of
the Rajasthan Minor Mineral Concession Rules, 2017 (hereinafter
referred as "the Rules of 2017") against the order dated
24.01.2017 passed by the Assistant Mining Engineer, Balesar.
3. The above appeal was filed on 15.03.2021 alongwith an
application under Section 5 of the Limitation Act.
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4. The Appellate Authority rejected petitioner's appeal on the
ground of limitation inter alia observing that the appellant
(petitioner herein) was required to file the appeal within a period
of six months from the date of order.
5. Mr. Shrimali, learned counsel for the petitioner, argued that
the rejection of petitioner's appeal by the Appellate Authority vide
its order dated 19.07.2018 was clearly contrary to facts and law
involved in the present case.
6. He argued that the period of limitation begins from the date
of receipt/communication of the order and since the order under
challenge was never communicated, the appeal could not have
been dismissed on the ground of delay.
7. Learned counsel for petitioner relied upon the judgment
dated 11.05.2018 passed by a coordinate Bench of this Court,
deciding a bunch of writ petitions led by SBCWP No.14920/2017
(Madan Lal Vs. State of Rajasthan & Ors.) in order to support his
contention that the Appellate Authority is required to count the
period of six months from the date of communication of the order.
8. Mr. Jasol, learned counsel appearing for the respondent-State
argued that the Appellate Authority was justified in rejecting
petitioner's appeal, because the same was filed belatedly, that too
beyond the maximum condonable period of six months.
9. Having heard learned counsel for the parties and upon
perusal of the material on record, this Court finds that the
impugned order passed by the Appellate Authority is unreasoned
besides being contrary to statutory provision of Rule 63 (4) of the
Rules of 2017, which is being reproduced herein under:-
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"63. Appeal. - (1) Any person aggrieved by any order of the
Superintending Mining Engineer, Superintending Mining Engineer
(Vigilance), Mining Engineer, Mining Engineer (Vigilance),
Assistant Mining Engineer or Assistant Mining Engineer (Vigilance)
passed under these rules shall have the right of appeal to the
Additional Director Mines authorized by the Government. (2) Any
person aggrieved by any order passed in appeal under sub-rule (1)
or any other order passed by the Director or Additional Director
Mines under these rules shall have the right of appeal to the
Government. (3) Every appeal shall be made in Form -29 in
duplicate and shall be accompanied by a fee of rupees five
thousand. (4) An appeal shall be filed within three months of the
date of communication of the order appealed against: Provided that
an appeal may be admitted after the said period if the appellate
authority is satisfied that the appellant has sufficient cause for not
filing the appeal within the said period but the appeal shall not be
admitted after expiry of six month from the date of order appealed
against."
10. It is to be noted that the proviso to sub rule (4) of Rule 63
provides the Appellate Authority possesses the power to admit an
appeal even after expiry of the period of three months from the
date of communication of the order, however, before the expiry of
the period of six months.
11. A look at the impugned order reveals that the Appellate
Authority has rejected the appeal by simply observing that more
than six months' period has since passed, from the date of
impugned order (24.01.2017), without ascertaining as to when
the order under appeal was served.
12. In the opinion of this Court, the statutory provisions, so also
judgment of this Court rendered in the case of Madan Lal (supra),
clearly provides that the Appellate Authority is required to reckon
the limitation period from the date of communication of the
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impugned order. But, in the instant case the Appellate Authority
has not even examined or recorded the finding as to when the
order under appeal was served/communicated.
13. This being the position, writ petition is allowed. Impugned
order dated 19.07.2018 is hereby quashed and set aside.
14. The Courts often come across such instances where the
appellants plead in their condonation applications under Rule
63(4) of the Rules of 2017 read with Section 5 of Limitation Act
that the order impugned was not served upon them. It is
intriguing to note that neither the appellants indicate the specific
date as to when the order under appeal was received/served nor
does the Appellate Authority record a finding about the date of
service. And, appeals without seeking condonation of delay are
rejected cursorily while simply observing that the appeal has been
filed after six months of the date of impugned order.
15. Therefore, the Appellate Authority while deciding the
application under rule 63(4) of the Rules of 2017 shall at the first
instance record a finding about the date of communication or
receipt of the order, then proceed to decide the application for
condonation of delay in accordance with law.
16. For the purpose aforesaid, the Appellate Authority will be
required to either call for the requisite record from the authority
concerned or take a categorical affidavit in relation to service of
the order from the concerned parties.
17. Upon the date of communication being ascertained, the
Appellate Authority shall calculate the period of three/six months,
commencing from such date. In case the delay is not beyond the
maximum period of delay which can be condoned in terms of
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proviso to Rule 63(4) of the Rules of 2017, he/she would condone
the delay, of course, if sufficient reasons have been shown.
18. The appeal before the Appellate Authority is restored. It will
be required of the petitioner to place a copy of the instant order
before the Appellate Authority within a period of four weeks, on
receipt of a copy of the order the Appellate Authority in turn shall
issue a notice to the petitioner indicating the date of hearing,
whereafter application for condonation of delay in filing the appeal
shall be considered and decided in accordance with law and in
terms of the directions given hereinabove.
19. Stay application also stands disposed of accordingly.
(DR.PUSHPENDRA SINGH BHATI),J.
130-nirmala/Sanjay-
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