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Allahabad High Court · body

2008 DIGILAW 945 (ALL)

AWADH NARAIN NISHAD v. STATE OF U P

2008-04-25

RAJIV SHARMA

body2008
RAJIV SHARMA, J. Heard Sri Ashok Kumar Verma for the petitioner, Sri N. C. Mehrotra, learned Additional Chief Standing Counsel, for the respondents No. 1 and 2 and Sri Pradeep Kumar Singh for respondent No. 3. 2. By means of the instant writ peti tion, the petitioner is challenging the order dated 6. 11. 2007 passed by the Secretary, Geology & Mining, (Revisional Authority) in revision No. 51 of 2007 by which the de lay in preferring revision has been con doned giving benefit of section 14 of the Limitation Act, 1963 revision. The im pugned order has been challenged primar ily on the grounds that there is no provi sion in the U. P. Minor Mineral (Concession) Rules, 1963 regarding appli cability of the Indian Limitation Act and as such Revisional Authority has committed manifest error of law in applying the pro vision of Limitation" Act; when it is an admitted fact that the revision was filed beyond the prescribed period of 90, days the revision cannot be treated to be within limitation; and that while disposing the application for the condonation of delay, the objections raised by the petitioner were neither considered nor have been dealt with in the impugned order. 3. It is submitted by the petitioners Counsel that vide order dated 7. 2. 20071 mining lease in respect of plot No. 1049 of village Manjha, District Faizabad was sanctioned in favour of the petitioner through the order dated 7. 2. 2007 by the District Magistrate Faizabad. A writ peti tion No. 911 (MB) of 2007 was filed by one Om Prakash challenging the grant of min ing lease in favour of the petitioner but a Division Bench of this Court dismissed the same on the ground of availability of alternative remedy. On 6. 9. 2007, said Om Prakash preferred a revision before the State Government alongwith an application for condonation of delay in filing the revision to which objections were filed by the petitioner mentioning therein that as the limitation for filing the revision is ninety days but the same has been preferred after expiry of the said period and as such in view of the proposition of law laid down in Deo Ram v. State of U. P. and others, the delay cannot be condoned. 4. Learned Counsel for the petitioner further submits that revisional authority is not a Court. 4. Learned Counsel for the petitioner further submits that revisional authority is not a Court. In support of the aforesaid submission, he has relied upon the judg ment of this Court at Allahabad rendered in Civil Miscellaneous Writ Petition No. 1255 of 2005 Deo Raj v. State of U. P. and oth ers decided on 3. 3. 2005, wherein this Court, while dealing with the provisions of Rule 78 of U. P. Minor Minerals (Concession) Rules, 1963 has specifically held that:- "the State Government while hearing a revision under Rule 78 cannot be held a Court nor it can be said that it has trappings of the Court while deciding a revision. In this view of the matter section 5 of the Limita tion Act was not applicable ipso facto unless the Limitation Act or any provisions of the Limitation Act is specifically applied. To the contrary under the rules there are provisions in which power to condone the delay in making an appli cation has been specifically pro vided. As noted above, Rule 6-A (2) specifically empowers the State v Government to condone the delay in making application for renewal of the mining lease after the period specified under sub-rule (1 ). No such provisions have been made under Rule 78 on which it can be safely inferred that the State Legis lature intend applicability of sec tion 5 of the Limitation Act under Rule 78 of the Rules. " 5. Refuting the submission advanced by learned Counsel for the petitioner, Sri N. C. Mehrotra, learned Counsel for the State, submits that the Apex Court in the case of Beg Raj Singh v. State of U. P. and oth ers, (2003) 1 SCC 726 has condoned the delay one and a half year on the ground of equity and he em phasizes that revisional authority has ob tain power to condone the delay on the ground of equity. It is not necessary that the provisions of the Limitation Act are to be applied and as such, the delay has rightly been condoned but the provisions have wrongly mentioned by the revisional authority while entertaining the revision. 6. Sri Pradeep Kumar Singh, learned Counsel appearing on behalf of respondent No. 3, supports the arguments advanced by Sri N. C. Mehrotra and did not argue the matter any further. 7. 6. Sri Pradeep Kumar Singh, learned Counsel appearing on behalf of respondent No. 3, supports the arguments advanced by Sri N. C. Mehrotra and did not argue the matter any further. 7. On the other hand, Counsel for the petitioner vehemently argued that the case relied by Sri N. C. Mehrotra does not relates to the condonation of delay but during the period of lease Beg Raj Singh (supra) was not allowed to excavate the sand and as such, he has approached this Court and this Court dismissed the writ petition against which Beg Raj Singh approached the Apex Court by filing a Special Leave Petition and the Apex Court held that the period for which the petitioner was not allowed to excavate the mining operation, same shall be extended in the lease period. 8. It would not be out of context to mention that the petitioner had earlier filed a writ petition No. 470 (MB) of 2008 com plaining therein that even though there is a sanction order issued on 7th February, 2007, yet the District Magistrate Faizabad is not executing the lease deed in favour of the petitioner. The said writ petition was allowed by the judgment and order dated 22. 1. 2008 with a direction that lease deed should be executed immediately. However, as regard the pending revision before the State Government, it was observed that the said judgment will not prejudice the rights of the respective parties before the State Government in the pending revision. 9. As regard the assertion made by the Counsel for the petitioner that the Sec retary of the State Government while per forming as Revisional Authority cannot be termed to be functioning as a Court. In this regard, it may be mentioned that the word court must be read in the context in which it is used in a statute. It is permissi ble, given the context, to read it as compre hending the Courts of Civil Judicature and Courts or some Tribunals exercising curial or judicial powers. It is agency of the sovereign created by it directly or indirectly under its authority, consisting of one or more officers, established and maintained for the purposes of hearing and determin ing issues of law and fact regarding legal rights and alleged violations thereof, and of applying the sanctions of law. 10. It is agency of the sovereign created by it directly or indirectly under its authority, consisting of one or more officers, established and maintained for the purposes of hearing and determin ing issues of law and fact regarding legal rights and alleged violations thereof, and of applying the sanctions of law. 10. Section 14 of the Limitation Act does not speak of a civil Court but speaks only of a court. Any authority or Tribunal having the trappings of a Court would be a court within the meaning of the said sec tion, see P. Sarathy v. State Bank of India (2000) 5 SCC 355 . 11. I am in full agreement with the view expressed by the learned Single Judge in Deo Rajs case (supra) that in U. P. Mines and Minerals (Concession) Rules, 1963, there is no indication that the State Gov ernment while hearing the revision act as an authority or Tribunal which have trap pings of the Court. Rule 6-A (2) specifically empowers the State Government to con done the delay in making application for renewal of the mining lease after the period specified under sub-rule (1 ). No such pro vision has been made under Rule 78 on which it can safely inferred that the State Legislature intend applicability of section 5 of the Limitation Act under Rule 78 of the Rules. 12. In view of the above, there is no power of condonation of delay under Rule 78; hence the order passed by the State Government condoning the delay in filing the revision cannot be sustained. 13. Accordingly, the order passed by the revisional authority is hereby set-aside. The writ petition is allowed. The matter is remanded to the revisional authority for deciding the same afresh. It is made clear that this Court has not delved upon the merits of the case. Petition Allowed. .