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High Court of KeralaSingle JudgeWrit petition disposed of with directions to th...

Charly Joseph v. State of Kerala and Others

Case / Petition Number:WP(C).No.19143 OF 2019(P)
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Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Anil K. Narendran, J.
Judgment Date
2019-08-09
Court Decision / Holding
The petition is disposed of by directing the 2nd respondent to consider Ext.P5 (condonation of delay) and Ext.P3 (appeal on merits) after recording its satisfaction on sufficient cause, if any, and after issuing notice to the petitioner and granting him an opportunity of hearing, expeditiously at the earliest, within three weeks from the receipt of a certified copy of this judgment. If Ext.P5 is favorably considered, the 2nd respondent shall then consider Ext.P3 on merits and pass appropriate orders thereon, strictly in accordance with law, within a further period of three months, with notices and hearing.
Final Disposition
Writ petition disposed of with directions to the 2nd respondent to consider Ext.P5 and Ext.P3 on merits after due process, within defined timeframes, and after hearing; if condonation is granted, Ext.P3 to be decided on merits within three months, with notice to the petitioner.

Parties to the Case

Appellants / Petitioners

  • Charly Joseph

Respondents

  • State of Kerala, represented by the Secretary, Industries Department, Secretariat, Thiruvananthapuram 695 001
  • Joint Secretary of Industries Department, Government of Kerala, Secretariat, Thiruvananthapuram 695 001
  • Geologist, District Office of the Department of Mining and Geology, Palakkad 678 014
  • District Collector, Civil Station, Palakkad 678 014
  • Deputy Tahsildar (RR), Taluk Office, Mannarkkad 678 582
  • Village Officer, Palakkayam Village, Palakkayam 678 591

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri R. Sreehari
  • • Sri Sachin Vyas

Counsels for Respondents

  • • Sri Manuraj K.J., Government Pleader

Case Synopsis & Summary

Charly Joseph, the petitioner, filed WP(C) No.19143 of 2019 seeking a writ of mandamus under Article 226 of the Constitution to compel the Joint Secretary, Industries Department, to consider Ext.P3 appeal under Rule 98 of the Kerala Minor Mineral Concession Rules, 2015 against Ext.P2 order dated 16-11-2016 of the District Geologist. The quarrying activity concerns a granite quarry on 24 cents of land in Palakkayam Village, Palakkad district. Ext.P5 is an application for condonation of delay accompanying Ext.P3. Sub-rule (1) of Rule 98 provides two avenues of appeal: within two months for the first appeal (clause (a)) and within one month for a second appeal (clause (b)); the proviso allows entertain ment of belated appeals if the appellant shows sufficient cause. Sub-rule (2)-(4) require impleading the authority against whose order the appeal is preferred, and furnishing copies to all parties with opportunity for representation. The petitioner argues that belated appeals may be entertained under the proviso, and condonation should be considered; he seeks mandamus to direct the 2nd respondent to decide Ext.P5 and, if satisfied, to consider Ext.P3 on merits after hearing. The Government Pleader sought time for instructions. The Court, citing Esha Bhattacharjee v. M.C. Raghunathpur Nafar Academy to emphasize a liberal, but reasonable, interpretation of "sufficient cause" and weighing prejudice, disposes the petition by directing the 2nd respondent to consider Ext.P5 and Ext.P3 on merits within set timeframes, after notice and hearing, and to pass appropriate orders strictly in accordance with law. Ultimately, the case reinforces access to justice while ensuring procedural rigor.

Provisions of Law Cited

Article 226 of the Constitution of IndiaRule 98 of the Kerala Minor Mineral Concession Rules, 2015 (including proviso to sub-rule (1) and sub-rules (2)-(4))Section 5, Limitation Act, 1963

Legal Doctrines & Maxims

  • Doctrine of prejudice
  • Liberal approach to condonation of delay under Rule 98 proviso
  • Reasonableness in determining 'sufficient cause' (as discussed in Esha Bhattacharjee)
  • Ends of justice

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P3 was filed under Rule 98 to challenge Ext.P2 and that belated appeals are permissible under the proviso to sub-rule (1) if sufficient cause is shown. Ext.P5, the condonation application, accompanies Ext.P3 and seeks to explain the delay. The remedy under Rule 98 is the appellate route, and denial would deprive the petitioner of an effective remedy. Citing liberal jurisprudence on condonation (as in Esha Bhattacharjee), the petitioner submits that the delay was for reasons beyond his control and that prejudice to the other parties can be avoided by timely hearing and disposal. He prays for mandamus directing the 2nd respondent to entertain Ext.P5, decide on condonation, and, if condonation is allowed, to consider Ext.P3 on merits after giving him notice and an opportunity of hearing, within a reasonable time. The petitioner further emphasizes that procedural safeguards be observed, including payment of fees and proper service, as required by Rule 98.

Contentions of Respondents

The respondents’ submissions, as they appeared in the record, indicate seeking time to file instructions and defend the procedural route under Rule 98. They emphasize that belated appeals must be anchored in a satisfactory demonstration of sufficient cause; condonation cannot be assumed and must be adjudicated by the appellate authorities in accordance with law, after affording the petitioner a hearing. While not contesting the appellate mechanism, they advocate adherence to the statutory framework to prevent misuse and ensure due process. The Government Pleader’s position reflects a cautious, rule-of-law approach, with emphasis on proper implementation of Rule 98 and compliance with procedural prerequisites.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy[(2013) 12 SCC 649]PositiveCited to illustrate liberal interpretation of 'sufficient cause' under Section 5 of the Limitation Act and condonation, while balancing ends of justice and prejudice.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** ## **WP(C).No.19143 OF 2019(P)** ## **PETITIONER :** **CHARLY JOSEPH, AGED 51 YEARS S/O. JOSEPH, MUNDUPARAMBIL HOUSE, MUNNEKKAR POST, KARIMBA, MANNARKKAD TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.R.SREEHARI SRI.SACHIN VYAS** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, INDUSTRIES DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 JOINT SECRETARY OF INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVNANTHAPURAM 695 001** - **3 GEOLOGIST, DISTRICT OFFICE OF THE DEPARTMENT OF MINING AND GEOLOGY, PALAKKAD 678 014** - **4 DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD 678 014** - **5 DEPUTY TAHSILDAR (RR), TALUK OFFICE, MANNARKKAD 678 582** - **6 VILLAGE OFFICER, PALAKKAYAM VILLAGE, PALAKKAYAM 678 591** ## **SRI. MANURAJ K.J., GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.19143 OF 2019(P)** **2** ## **C.R.** ## **JUDGMENT** 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 2[nd] 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 3[rd] 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 **WP(C).No.19143 OF 2019(P)** **3** 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 2[nd] 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 3[rd] 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 **WP(C).No.19143 OF 2019(P)** **4** 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 **WP(C).No.19143 OF 2019(P)** **5** 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. **WP(C).No.19143 OF 2019(P)** **6** 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 **WP(C).No.19143 OF 2019(P)** **7** 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 2[nd] 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 as 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 2[nd] **WP(C).No.19143 OF 2019(P)** **8** 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. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/13/8 **WP(C).No.19143 OF 2019(P)** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTO COPY OF DEMAND NOTICE DATED 31-01-2019 ISSUED BY THE 5TH RESPONDENT** **EXHIBIT P2 PHOTO COPY OF THE ORDER DATED 1611-2016 PASSED BY THE 3RD RESPONDENT** **EXHIBIT P3 PHOTO COPY OF THE APPEAL MEMO FILED BEFORE THE 2ND RESPONDENT** **EXHIBIT P4 PHOTO COPY OF THE CHALAN RECEIPT EVIDENCING PAYMENT OF FEE** **EXHIBIT P5 PHOTO COPY OF APPLICATION FOR CONDONATION OF DELAY WITH DOCUMENTS.**