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2008 DIGILAW 943 (JHR)

Tapas Kumar Dutta v. State of Jharkhand

2008-08-14

D.K.SINHA, M.Y.EQBAL

body2008
Judgment M.Y. Eqbal, J.- This letters patent appeal is directed against the judgment dated 19.4.2007 passed in W.P.C. No. 6474/2006 whereby the learned Single Judge dismissed the writ petition with certain observation and direction. 2. The aforementioned writ application was filed by the petitioner/appellant for quashing the order dated 28.3.2006 passed by Commissioner, South Chhotanagpur Division, Ranchi in Misc. Appeal No. 86/05 whereby appeal filed by respondent no. 6 was admitted and operation of the order was stayed. 3. It appears that the land in dispute was leased out to respondent no. 6 M/s Pawan Automobiles wherein lessee was running petrol pump. "No Objection Certificate" granted to respondent no. 6 by the District Magistrate-cum-Deputy Commissioner was cancelled by order dated 27.7.2005. The said order was challenged by respondent no. 6 in a writ petition, which was disposed of by a Bench of this Court directing respondent no. 6 to seek relief before the appropriate forum. Respondent No. 6 then challenged the said order by filing appeal before the Commissioner who in terms of order dated 28.3.2006 admitted the appeal and stayed the operation of order passed by the Deputy Commissioner cancelling "No Objection". The said urder of the Commissioner was challenged by the petitioner by filing W.P.C. No. 6474/2006 which was disposed of by the learned Single Judge who without interfering with the order of the Commissioner directed for disposal of the appeal within a fixed time. 4. Mr. Anil Kumar Sinha learned senior counsel appearing for the appellant assailed the impugned order passed by the Commissioner and also the judgment passed by learned Single Judge mainly on the ground that Commissioner being the appellate authority has no jurisdiction to admit the time barred appeal and stayed the operation of the order. 5. The sole question that falls for consideration is as to whether respondent no. 2, Commissioner committed error of law in admitting the appeal and staying operation of the order passed by the Deputy Commissioner. 6. As noticed above, "No objection" granted to respondent no. 6 was cancelled as far back as on 27.7.2005. Instead of challenging the said order by preferring appeal as provided in the Petroleum Rules, respondent no. 6 filed writ petition being W.P.C. No. 4510/05 which was disposed of on 29.11.2005. 6. As noticed above, "No objection" granted to respondent no. 6 was cancelled as far back as on 27.7.2005. Instead of challenging the said order by preferring appeal as provided in the Petroleum Rules, respondent no. 6 filed writ petition being W.P.C. No. 4510/05 which was disposed of on 29.11.2005. The Bench of this Court in the said order dated 29.11.2005 held that the order passed by the Deputy Commissioner needs no interference under Article 226 of the Constitution of India and hence, petitioner may seek relief before the appropriate forum. It was, thereafter, respondent no. 6 preferred appeal before respondent no. 2 Commissioner. The Commissioner by ordor dated 6.2.2006 held that the appeal was filed after lapse of period of limitation. The order dated 6.2.2006 is quoted hereinbelow: "Heard the petitioner. The certified copy of the impugned order dated 27.7.2005 has not been filed. Government Pleader, Ranchi's opinion has been received. Before proceeding further, the concerned lower court record/file may be called for. This petition has been filed after the lapse of the period of limitation (that is after forty five days). To 28.2.2006." 7. The case, thereafter, was adjourned on 28.2.2006, 13.3.2006 and 28.3.2006. On 28.3.2006 the appeal was admitted and operation of the order was stayed. For better appreciation, the order dated 28.2.2006, 13.3.2006 and 28.3.2006 are quoted hereinbelow: 28.2.2006. Record/file of the court of Deputy Commissioner, Ranchi's, not yet received. The Commissioner is busy otherwise; hence the case is adjourned to 13.3.2006 for hearing." "13.3-2006. Record/file of Deputy Commissioner Ranchi's not yet received. The Commissioner is busy otherwise, hence the case is adjourned to 28.3.2006 for hearing." 28.3.2006. Record/file of Deputy Commissioner, Ranchi's not yet received. L.C. Record has been just received. Heard the petitioner and perused the submission of G.P. The case is admitted. Issue notice to respondent nos. 2 and 3. In the meantime the operation of the impugned order shall remain stayed. To. 5.6.2006." 8. From perusal of the aforesaid order, it is manifestly clear that the Commissioner without considering the previous order and without application of mind admitted the appeal and stayed the order of the Deputy Commissioner. Admittedly, the appeal was filed by respondent no. 6 before the Commissioner after expiry of limitation provided under the Petroleum Rules and the Commissioner himself found that appeal was barred by limitation. Admittedly, the appeal was filed by respondent no. 6 before the Commissioner after expiry of limitation provided under the Petroleum Rules and the Commissioner himself found that appeal was barred by limitation. If that is so, then the Commissioner without condonation of delay in preferring the appeal and without giving notice to the respondent (appellant herein) ought not to have passed ex parte order of stay. It is well settled law that when period fixed for preferring appeal expires, then a valuable right accrues to other party and such right cannot be taken away by passing an ex parte order. It is equally well settled that existence of sufficient cause only gives jurisdiction to the Court or the Tribunal to condone delay in filing the appeal or application. This aspect of the matter has not been considered by the learned Single Judge while passing the impugned judgment. Learned Single Judge, rightly directed respondent no. 2 Commissioner to dispose of the appeal. However, learned Single Judge ought to have set aside the order of stay passed by the Commissioner in appeal preferred by respondent no. 6. 9. This appeal is, therefore, allowed and the order dated 28.3.2006 passed by the Commissioner staying the order of the Deputy Commissioner is set aside. As directed by the learned Single Judge, respondent no.2 Commissioner, South Chhotanagpur Division, Ranch: shall hear the appeal in the matter of condonation of delay and also on merit and dispose of the appeal within six weeks from the date of receipt/production of a copy of this order. D.K. Sinha, J.-I agree.