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2019 DIGILAW 2880 (RAJ)

Laxmi Devi v. State of Rajasthan

2019-11-20

ASHOK KUMAR GAUR

body2019
JUDGMENT Ashok Kumar Gaur, J. - The instant writ petition has been filed by the petitioner challenging the order dated 05.11.2019 whereby the Revisional Authority has refused to hear the stay application filed by the petitioner alongwith revision petition. The petitioner has further prayed in the petition for seeking direction to allow him to continue the mining of masonry stone, as per mining lease agreement dated 02.03.2012, as per offer given by the petitioner of depositing 50% of penalty amount within 15 days. The petitioner further makes a prayer that the respondent be restrained from passing any adverse order against the interest of the petitioner during the pendency of the writ petition. 2. Learned counsel for the petitioner Mr. Ajatshatru Mina submitted that the petitioner had felt aggrieved against the order dated 07.08.2019 and as such the revision petition was filed under Rule 64 of the Rajasthan Minor Minerals Concession Rules, 2017 (hereinafter 'the Rules of 2017'). Counsel submitted that after report of the clerk concerned in the revision petition, the petitioner had also filed power of attorney, making the revision petition to be legally competent, on 15.10.2019 and the Revisional Court issued notices on 01.11.2019 while fixing the next date on 09.12.2019. Counsel submitted that the petitioner had to move early hearing application on 05.11.2019 requesting that the stay application filed alongwith the revision petition was required to be heard at the earliest as the petitioner was stopped from continuing with mining operations and further there was likelihood of his lease being determined / cancelled. 3. Counsel submitted that the petitioner in his early hearing of the stay application had specifically submitted that mining operations of the petitioner may be restored, subject to the condition that the petitioner deposits 50% amount of the demand within 15 days and remaining amount in 6 equal installments in 12 months. 4. Counsel submitted that the Revisional Authority has refused to hear the stay application without any just reason and the entire mining operations of the petitioner have come to stand still. 5. Counsel further submitted that as per sub-rule (5) of Rule 65 of the Rules of 2017, during pendency of the revision petition, the Revisional Authority has power to stay the execution of order against which revision petition is filed and the party concerned has to show the sufficient cause for passing of such order. 6. 5. Counsel further submitted that as per sub-rule (5) of Rule 65 of the Rules of 2017, during pendency of the revision petition, the Revisional Authority has power to stay the execution of order against which revision petition is filed and the party concerned has to show the sufficient cause for passing of such order. 6. Counsel submitted that the petitioner had explained the sufficient cause for grant of interim order, however the Revisional Authority without any reason had refused to hear the stay application. 7. Counsel also submitted that the petitioner has rightly approached this Court under Article 226 of the Constitution of India for seeking mandamus against the respondents-Authorities for not passing any order, prejudice to the interest of the petitioner and further to permit the petitioner to continue the mining operations. 8. Mr. Zakir Hussian, Addl. G.C. appearing on behalf of the respondents submitted that the writ petition, filed by the petitioner against the order dated 05.11.2019 rejecting early hearing application, is not maintainable under Article 226 of the Constitution of India and if at all the petitioner had any grievance, he could have approached this Court under Article 227 of Constitution of India. 9. Counsel further submitted that as per the procedure prescribed under Rule 65 of the Rules of 2017, the Revisional Authority has to issue notices to the officers concerned calling upon them to make their comments within one month from the issue of notice and after receiving the comments, the Revisional Authority can pass appropriate order finally or may also pass the order on stay application. 10. Counsel submitted that the Revisional Authority was justified in refusing to hear the stay application of the petitioner on priority basis as notices were issued on 01.11.2019 and next date was also fixed on 09.12.2019. 11. Counsel further submitted that it is for the Revisional Authority to decide as whether the offer made by the petitioner to deposit the outstanding amount of 50% and rest of the amount in installment, is to be accepted or not for passing the stay order and this Court may not straightway give any direction to accept such offer of the petitioner. 12. Counsel also refers to an order passed by the Coordinate Bench of this Court in S.B. Civil Writ Petition No.12638/2019 (Virendra Kumar Tak Versus State of Rajasthan & Ors.) decided on 27.08.2019. 13. 12. Counsel also refers to an order passed by the Coordinate Bench of this Court in S.B. Civil Writ Petition No.12638/2019 (Virendra Kumar Tak Versus State of Rajasthan & Ors.) decided on 27.08.2019. 13. I have heard learned counsel for the parties and perused the material available on record. 14. This Court finds that the procedure which is prescribed under Rule 65 of the Rules of 2017, gives powers to the Revisional Authority to stay the execution of the order for sufficient cause and the said power can be exercised by the Revisional Authority after considering the relevant facts. 15. This Court does not find any substance in the submissions of the learned counsel for the respondents that only after waiting for reply of the Officer or the respondents, the Court can pass order on stay application. The bare perusal of sub-rule (5) of Rule 65 of the Rules of 2017, nowhere prescribes, as a condition precedent, that the Revisional Court has to first wait for the reply or comments to be given within one month from the date of communication and thereafter the Revisional Court can pass order on stay application. 16. This Court is of the opinion that the discretion of the Revisional Authority has to be exercised while keeping in mind the parameters of granting interim order and if any person shows sufficient cause, the Revisional Court is fully competent to pass orders on the stay application whereby execution of order, against which appeal is filed, can be stayed. 17. This Court finds that in the present case, the Revisional Authority has refused to hear the stay application of the petitioner by holding that no ground of urgency is made out. This Court finds that the said reason cannot be a correct reason for deciding the early hearing of stay application. The petitioner, if has been able to plead and prove before the Revisional Authority that the mining operations have been stayed and the offence against which the petitioner has preferred the revision petition can be compounded and 50% of the amount is being deposited by the petitioner and rest of the amount in installments, these considerations are required to be considered by the Revisional Authority. 18. 18. This Court is not taking away the discretion of the Revisional Authority and it is for the Revisional Authority to decide as to in what manner it wants to exercise its discretion, however the judicial discretion has to be exercised within the parameters of law. 19. This Court finds that the Revisional Authority is required to take up the stay application filed by the petitioner in expeditious manner. 20. This Court further finds that the Coordinate Bench of this Court in the case of Virendra Kumar Tak (supra) has also directed the Revisional Authority to decide the revision petition itself within 10 days and further the stay application was also directed to be decided within 3 days. 21. This Court accordingly disposes of the writ petition by directing the Revisional Authority to decide the stay application of the petitioner on merits within a period of 7 days. 22. This Court also makes it clear that the facts which were pleaded by the parties before the Revisional Authority are required to be looked into and after considering the case for the purpose of granting of interim order, appropriate decision shall be taken by the Revisional Authority.