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Charly Joseph v/s State of Kerala, Represented by The Secretary, Industries Department, Thiruvananthapuram & Others


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    WP(C). No. 19143 of 2019(P)

    Decided On, 09 August 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN

    For the Petitioner: R. Sreehari, Sachin Vyas, Advocates. For the Respondents: K.J. Manuraj, GP.



Judgment Text

1. The petitioner, who was conducting a Granite quarry in 24 cents of land out of a total extent of 1 Acre in Survey No.2261 Pt in Palakkayam Village, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2nd respondent Joint Secretary, Industries Department to consider Ext.P3 appeal dated 03.07.2019 filed against Ext.P2 order dated 16.11.2016 of the 3rd respondent District Geologist, invoking the provisions under Rule 98 of the Kerala Minor Mineral Concession Rules, 2015, which is accompanied by Ext.P5 application for condonation of delay, and pass appropriate orders on merits, within a time limit to be specified by this Court, after affording him an opportunity of being heard.

2. On 15.07.2019, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions.

3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents.

4. The petitioner filed Ext.P3 appeal (dated 03.07.2019) before the 2nd respondent Appellate Authority, invoking Rule 98 of the Kerala Minor Mineral Concession Rules, in order to challenge Ext.P2 order dated 16.11.2016 of the 3rd respondent District Geologist.

5. As per clause (a) of sub-rule (1) of Rule 98 of the Kerala Minor Mineral Concession Rules, any person aggrieved by any order made by the competent authority or authorised officer, as the case may be, under these rules, may within two months from the date of communication of the order to him, prefer an appeal in Form O to the Appellate Authority appointed by the Government in this behalf by notification in the Gazette. As per clause (b) of sub-rule (1), any person aggrieved by an order of the Appellate Authority under clause (a) may, within one month from the date of communication of such order to him, prefer a second appeal in Form O to the final Appellate Authority appointed by Government in this behalf by notification in the Gazette.

6. As per the proviso to sub-rule (1) of Rule 98, any such appeal, under clause (a) or clause (b), may be entertained after the period specified therein if the appellant satisfies the Appellate Authority or Final Appellate Authority, as the case may be, that he had sufficient cause for not filing the appeal in time. As per clause (c) every appeal memorandum, under clause (a) and clause (b) shall be accompanied by the treasury receipt showing that a fee of five hundred rupees has been remitted in the Government Treasury to the credit of the Government under the remittance head of the Department of Mining and Geology.

7. Sub-rule (2) of Rule 98 provides that in every appeal memorandum under sub-rule (1) the authority against whose order the appeal is preferred shall be impleaded as a party. As per sub-rule (3), along with the appeal memorandum under sub-rule (1), the appellant shall submit as many copies thereof as there are parties impleaded under sub-rule (2). Sub-rule (4) of Rule 98 provides that on receipt of the appeal memorandum and the copies thereof the Appellate Authority or the Final Appellate Authority, as the case may be, shall send a copy of the appeal memorandum to each of the parties impleaded under sub-rule (2) specifying a date on or before which he may make his representation if any, against the appeal.

8. In view of the proviso to sub-rule (1) of Rule 98, an appeal under clause (a) or clause (b) may be entertained after the period specified therein, if the appellant satisfies the Appellate Authority or the Final Appellate Authority, as the case may be, that he had sufficient cause for not filing the appeal in time. Therefore, in order to entertain a belated appeal, the Appellate Authority or the Final Appellate Authority has to record its satisfaction that the appellant had sufficient cause for not filing that appeal in time.

9. Though the expression 'sufficient cause' employed by the Legislature in the proviso to sub-rule (1) of Rule 98 of the Kerala Minor Mineral Concession Rules is adequately elastic to enable the Appellate Authority or the Final Appellate Authority to apply the law in a meaningful manner, which subserves the ends of justice, lack bonafides imputable to a party seeking condonation of delay is a significant and relevant fact.

10. As held by the Apex Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy [(2013) 12 SCC 649], in the context of the expression 'sufficient cause' employed by the Legislature in Section 5 of the Limitation Act, 1963, the concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. There is a a distinction between inordinate delay and delay of short duration or few days; for the former the doctrine of prejudice is attracted, whereas to the latter it may not be attracted. That apart, the first one warrants strict approach, whereas the second calls for a liberal delineation.

Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 2nd respondent to consider Ext.P5 application made by the petitioner for condonation of delay in filing Ext.P3 appeal and take an appropriate decision thereon, recording its satisfaction a

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s to the sufficient cause, if any, for not filing Ext.P3 appeal in time, with notice to the petitioner and after affording him an opportunity of being heard, as expeditiously as possible, at any rate, within a period of three weeks from the date of receipt of a certified copy of this judgment. The 2nd respondent shall consider Ext.P3 appeal on merits [in case Ext.P5 application is favourably considered] and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and after affording him an opportunity of being heard, within a further period of three months.
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