21 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(C) No. 2572/2023 TBA Infrastructure Private Ltd. Through: Mr. M. K. Bhardwaj, Sr. Advocate with Mr. Gagan Kohli, Advocate Vs. UT of J&K and others Through: Mr. Rajesh Kumar Thappa, AAG CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER (ORAL) 26.03.2025 1. Through the medium of present petition, the petitioner has challenged order dated 23.08.2023 passed by respondent No. 1, whereby appeal filed by the petitioner against order dated 09.04.2021 passed by the Director, Geology & Mining Department J&K, Jammu as also against order dated 07.11.2020 issued by District Mineral Officer, Jammu, has been dismissed on the ground of limitation. 2. It appears that respondent No. 3, District Mineral Officer, Jammu seized Stone Crusher, Hot and Wet Mix Plant, Concrete Batching Plant, Fabricated Unit along with Minor Minerals (12000 Mt. Crusher Bajri, 700 MT Bed Material, 7000 MT Nallah Boulder and 350 MT C/Dust)vide seizure memo No. 1817-18 dated 07.11.2020 in terms of Section 21(4) of the Mines and Minerals (Development & Regulation) Act, 1957 and the rules made thereunder. 3. The aforesaid order of respondent No. 3 was challenged by the petitioner by way of an appeal in terms of Rules 85 of the Jammu and Kashmir 2 WP(C) No. 2572/2023 Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 (hereinafter to be referred as “the Rules of 2016”) before Director Geology and Mining Department, Jammu, respondent No. 2. During pendency of the appeal, the petitioner sought reassessment of the seized material and accordingly, a committee was constituted by the Appellate Authority on 30.01.2021 with a direction to visit the site and carryout spot inspection. It also appears that vide report dated 17.02.2021, the committee reported that the seized material does not seem to be freshly crushed or extracted. The Appellate Authority, respondent No. 2 vide impugned order dated 09.04.2021 declined to rely upon the report of the committee and dismissed the appeal of the petitioner. 4. The aforesaid order passed by the Appellate Authority was challenged by the petitioner by way of writ petition before this Court, which was registered as WP(C) No. 2707/2021. However, the said writ petition came to be dismissed by this Court in terms of order dated 19.05.2022 by holding that the said order is appealable in terms of Rule 85(2) of the Rules of 2016. 5. After dismissal of the writ petition, it appears that the petitioner filed appeal before respondent No. 1 on 22.12.2022. By virtue of the impugned order dated 23.08.2023, the appeal filed by the petitioner has been dismissed by the Appellate Authority, respondent No. 1 on the ground of limitation without touching merits of the case. 6. Heard learned counsel for the petitioner and perused record of the case. 7. The question that is required to be determined in this case is as to whether respondent No. 1, Appellate Authority was right in dismissing the 3 WP(C) No. 2572/2023 appeal of the petitioner on the ground of limitation while discarding the prayer of the petitioner for condoning the delay. 8. If we have a look at the record, alongwith the appeal, the petitioner had also filed an application for condonation of delay in filing the appeal. In the said application, it was pleaded by the petitioner that delay in filing the appeal was neither deliberate nor intentional but it was due to the reason that the petitioner had inadvertently chosen the forum of the High Court prior to filing of the appeal. 9. Sub Section (2) of Section 29 of the limitation Act, 1963 inter alia provides that the provisions of Sections 4 to 24 of the Limitation Act shall apply only insofar as and, to the extent to which they are not expressly excluded by special law. Thus, the provision relating to condonation of delay in fling the appeal like Section 5 of the Act and provision relating to exclusion of time of proceeding bona fide in a Court without jurisdiction like Section 14 of the Act, would become applicable to the present case, if there is no provision in the Rules, that is contrary to the aforesaid two provisions. The Rules of 2016 do not contain anything contrary to the provisions contained in Section 5 or Section 14 of the limitation Act so far as filing of appeal in terms Section 85 (2) of the Rules of 2016 is concerned. In fact, Rule 87 specifically provides that Appellate Authority is vested with jurisdiction to entertain the appeal even after the stipulated period of three months, if the said authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the stipulated period. Therefore, even the Rules provide for condonation of delay in filing the appeal in appropriate case. 4 WP(C) No. 2572/2023 10. Adverting to the facts of the present case, the petitioner had specifically pleaded in his application for condonation of dalay that it was prosecuting with due diligence and in a good faith the proceedings before this Court by way of a writ petition but the learned Appellate Authority has rejected the said contention of the petitioner by holding that the petitioner had approached the said authority after a gap of more than twenty months. The approach adopted by the Appellate Authority is too technical and pedantic, as a result of which the authority has preferred technicality over the substantial justice. The fact that the petitioner was prosecuting the writ petition before this Court against the order passed by respondent No. 2 was good enough ground to condone the delay in filing the appeal before respondent. 1. 11. The Supreme Court and the High Courts of the country have consistently held that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right to injustice being done because of a non-deliberate delay. 11. In the instant case, the petitioner was not going to gain anything by delaying the filing of the appeal against the order of respondent No. 1, nor has there been any inordinate or unreasonable delay in filing the appeal on its part, the fact that the petitioner was prosecuting the writ petition before this Court, which was dismissed on ground of availability of alternate remedy, shows that there was no deliberate or intentional delay on the part of the petitioner. Therefore, the impugned order passed by the respondent No. 1 is not sustainable in law. 5 WP(C) No. 2572/2023 12. For the foregoing reasons, the writ petition is allowed and the impugned order dated 23.08.2023 passed by respondent No. 1 is set aside and the matter is remanded to respondent No. 1 with a direction to consider the appeal of the petitioner on merits and pass appropriate orders in accordance with law. 13. Disposed of. (SANJAY DHAR) JUDGE Jammu 26.03.2025 Karam Chand/Secy. KARAM CHAND 2025.04.02 13:36 I attest to the accuracy and integrity of this document