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2021 DIGILAW 2130 (RAJ)

Mohan Ram v. State of Rajasthan

2021-11-15

DINESH MEHTA

body2021
ORDER 1. Instant writ petition lays challenge to the order dated 16.04.2021, passed by Appellate Authority, whereby, petitioner's appeal against the order dated 05.09.2018 passed by the respondent No.3, 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 05.09.2018 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. 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. Vyas, learned counsel for the petitioner, argued that the rejection of petitioner's appeal by the Appellate Authority vide its order dated 16.04.2021 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:- "63. Appeal. 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:- "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 (05.09.2018), 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 impugned order. 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 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 16.04.2021 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 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. In case the delay is not beyond the maximum period of delay which can be condoned in terms of 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.