Dharmendra Kumar Sharma Son of Late Shri Purshottam Das Sharma Vs State of Rajasthan

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 10599/2025

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Jamil Ahmed Son Of Shri Jahur Khan, Aged About 65 Years, Resident Of Shadipur, Tehsil Nagina, Distt. Gurgaon, Haryana.

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----Petitioner

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Versus

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State Of Rajasthan, Through The Principal Secretary, Department Of Mines And Petroleum, Government Of Rajasthan, Secretariat, Jaipur.

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Additional Director (Mines), Department Of Mines And Geology, Jaipur Range, Having Its Office At Khanij Bhawan, C-Scheme, Jaipur.

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Superintending Mining Engineer, Jaipur Range, Jaipur.

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Office Of The Mining Engineer, Alwar, Through The Mining Engineer, Having Its Office At Khanij Bhawan, Alwar.

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----Respondents

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Connected With

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S.B. Civil Writ Petition No. 10595/2025

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Dharmendra Kumar Sharma Son Of Late Shri Purshottam Das Sharma, Aged About 52 Years, Resident Of House No. 1073, H.b.c. Sector 11, Gurgaon (Haryana).

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----Petitioner

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Versus

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State Of Rajasthan, Through The Principal Secretary, Department Of Mines And Petroleum, Government Of Rajasthan, Secretariat, Jaipur.

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Additional Director (Mines), Department Of Mines And Geology, Jaipur Range, Having Its Office At Khanij Bhawan, C-Scheme, Jaipur.

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Superintending Mining Engineer, Jaipur Range, Jaipur. 4. Office Of The Mining Engineer, Alwar, Through The Mining Engineer, Having Its Office At Khanij Bhawan, Alwar.

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----Respondents

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S.B. Civil Writ Petition No. 10618/2025

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Dharmendra Kumar Sharma Son Of Late Shri Purshottam Das Sharma, Aged About 52 Years, Resident Of House No. 1073,

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H.b.c. Sector 11, Gurgaon (Haryana)

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----Petitioner

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Versus

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State Of Rajasthan, Through The Principal Secretary, Department Of Mines And Petroleum, Government Of Rajasthan, Secretariat

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Additional Director (Mines), Department Of Mines And Geology, Jaipur Range, Having Its Office At Khanij Bhawan, C-Scheme, Jaipur.

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Superintending Mining Engineer, Jaipur Range, Jaipur. 4. Office Of The Mining Engineer, Alwar, Through The Mining Engineer, Having Its Office At Khanij Bhawan, Alwar.

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----Respondents

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For Petitioner(s)	: Mr.SandeepSingh Shekhawat
For Respondent(s)	: Mr.Rahul Lodha,Addl.GC.

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JUSTICE ANOOP KUMAR DHAND

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Order

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24/07/2025

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Since common question of law and facts are involved in these writ petitions, hence, with the consent of the counsel for the parties, arguments have been heard together and all these writ petitions are being decided by this common order.

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For the sake of convenience, the facts and the prayer sought in S.B. Civil Writ Petition No.10599/2025 are taken into consideration.

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The instant writ petition has been filed by the petitioners with the following prayer:-

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“It is, therefore, humbly prayed that Your Lordships may graciously be pleased to call for entire record of this case and after examining the

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same, admit and allow the writ petition be issuing an appropriate writ, order or direction:0

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(i) The impugned order dated 17.03.2017 and 02.04.2025 passed by the respondents be quashed and set-aside.

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(ii) The respondents be directed to restore the Mining Lease bearing ML No.144/2002 for the mineral masonary stone, situated near Village Khokra Thakran, tehsil-Kotkasim, District-Alwar be kindly restored in favour of the petitioner.

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(iii) Any other relief which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case, may also kindly be passed in favour of the petitioner.

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(iv) Cost of the litigation may kindly be passed in favour of the petitioner.”

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By way of filing this writ petition, a challenge has been led to the impugned order dated 02.04.2025 passed by the Additional Director (Mines), ie., the Appellate Authority, by which the appeal preferred by the petitioner against the mining cancellation order dated 17.03.2017 has been rejected on the ground of delay.

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Learned counsel for the petitioner submits that the order of cancellation of mines was never communicated to the petitioner and this ground was taken by the petitioner as ground No.4 while submitting the appeal before the Appellate Authority. Counsel submits that in addition to the above, a separate application under Section 5 of the Limittion Act was also submitted seeking condonation of delay in filing the appeal and the reason assigned

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in the aforesaid application was that owing to long ill health of wife of the petitioner, the delay has occurred in filing the appeal.

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Counsel submits that neither the ground mentioned in Para 4 nor the ground mentioned in the condonation of delay applicaion filed under Section 5 of the Limitation Act, has been taken into consideration and the appeal has been dismissed in a cursory manner by treating the same as time barred, without passing a reasoned order. Counsel submits that under these circumstances, the imugned order is not sustainable in the eyes of law and is liable to be quashed and set-aside.

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In support of his contentions, he has placed reliance upon the order passed by the Co-ordinate Bench at Principal Seat of this Court in the case of Mohan Ram Vs. State of Rajasthan & Ors. while deciding S.B. Civil Writ Petition No.9092/2021 decided on 15.11.2021.

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Per contra , learned counsel for the respondent-State opposes the prayer and submits that in other two matters, i.e., S.B. Civil Writ Petition Nos.10595/2025 and 10618/2025, the notice for cancellation of mining lease was sent to the petitioner by the registered post and as per Section 27 of the General Clauses Act, 1897, it shall be presumed that the notice was received by the petitioner, hence, the petitioner cannot be allowed to say that he was not aware about the notice and therefore, the petitioner cannot be allowed to say that he was not aware about passing of the impugned order.

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In rejoinder, learned counsel for the petitioner submits that the alleged date of cancellation of mining lease is 17.03.2017, but the said order was never served and communicated upon the

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petitioner, the notice dated 09.02.2016, which was allegedly sent to the petitioner showing deficiencies in similar mines of the petitioner has also not been received by the petitioner. Counsel submits that under these circumstances, it cannot be believed and presumed that the impugned order dated 17.03.2017 was ever served upon the petitioner.

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Heard and considered the submissions made at the Bar and perused the material available on record. 11. Perusal of the record indicates that the petitioner is basically aggrieved by the order by which the mining lease of the petitioner has been cancelled and this fact has been disputed by both the sides whether the impugned cancellation order was served upon the petitioner or not. This fact is not in dispute that the order dated 17.03.2017 is the order by which the mining lease of the petitioner has been cancelled. This fact is also not in dispute that the aforesaid order was assailed by the petitioner before the Appellate Authority in the year 2021, by taking two different grounds in the memo of appeal along-with the application of condonation of delay filed under Section 5 of the Limitation Act in the memo of appeal, wherein the justification has been shown by the petitioner that this order was never communicated to the petitioner and in the condonation application filed under Section 5 of the Limitation Act, the reason assigned was about prolong illness of wife of the petitioner.

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It was expected from the Appellate Authority to consider the reasons mentioned in the stay application. Bare perusal of the entire order passed by the Appellate Authority does not reflect the issue that whether the ground taken by the petitioner in the

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application filed under Section 5 of the Limitation Act was justified or not, the appeal has been decided in a cursory manner without application of mind.

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The Co-ordinate Bench of the Principal Bench of this Court in the case of Mohan Ram (supra) has dealt with the identical situation and has held in Para Nos.9 to 18 are as follows:-

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“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 theRules of 2017, which is being reproduced herein under:-

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“ 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 Minesauthorized by the Government.

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(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 tothe Government.

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(3) Every appeal shall be made in Form -29 induplicate and shall be accompanied by a fee ofrupees five thousand.

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(4) An appeal shall be filed within three months of the date of communication of the order appealed against:

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Provided that an appeal may be admitted after the said period if the appellate authority is satisfied that the appellant has

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sufficient cause for not filing theappeal within the said period but the appeal shall not be admitted after expiry of six month from thedate of order appealed against.”

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It is to be noted that the proviso to sub rule (4) of Rule63 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.

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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.

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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 isrequired to reckon the limitation period from the date ofcommunication of the impugned order. But, in the instant case the Appellate Authority has not even examined or recorded thefinding as to when the order under appeal was served/ communicated.

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This being the position, writ petition is allowed. Impugned order dated 16.04.2021 is hereby quashed and set aside.

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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

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the specific date as to when the order under appeal wasreceived/served nor does the Appellate Authority record afinding 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 monthsof the date of impugned order.

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Therefore, the Appellate Authority while deciding the application under rule 63(4) of the Rules of 2017 shall at thefirst instance record a finding about the date of communicationor receipt of the order, then proceed to decide the application for condonation of delay in accordance with law.

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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 toservice of the order from the concerned parties.

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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 notbeyond the maximum period of delay which can be condonedin terms of proviso to Rule 63(4) of the Rules of 2017, he/she would condone the delay, of course, if sufficient reasons havebeen shown.

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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

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for condonation of delay in filing the appeal shall be considered and decided inaccordance with law and in terms of the directions given hereinabove.”

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It is the duty of the Appellate Authority to decide the appeals by passing a reasoned and speaking order and taking into account, the grounds taken in the application filed under Section 5 of the Limitation Act and the grounds mentioned in the memo of appeal, but herein the instant case, the grounds taken by the petitioner under Section 5 application have not been taken into account and the appeals have been treated as time barred.

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In the considered opinion of this Court, the Appellate Authority was expected to take into account the grounds taken by the petitioner in the application filed under Section 5 of the Limitation Act and then only the appeal should decide, however, in the instant case, without considering the grounds taken in Section 5 Application, the appeal has been rejected.

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On this count alone, the order passed by the Appellate Authority stands quashed and set-aside. The matter is remitted to the Appellate Authority to decide Section 5 Application and appeal afresh, after affording due opportunity of hearing to both the sides within a period of four weeks from the date of receipt of certified copy of this order.

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Stay application and all pending application(s), if any, also stand disposed of.

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(ANOOP KUMAR DHAND),J

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Aayush Sharma /10-12

Dharmendra Kumar Sharma Son of Late Shri Purshottam Das Sharma v. State of Rajasthan

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Dharmendra Kumar Sharma Son of Late Shri Purshottam Das Sharma v. State of Rajasthan

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