Simon Siangshai vs M/S Adhunik Cement Ltd. & Ors.

In this writ petition, the petitioner seeks to challenge the order dated 27.05.2019 passed by the Deputy Commissioner, East Jaintia Hills District, Khliehriat condoning the delay in filing the appeal by the respondents wherein challenge were made of the order dated 09.12.2014 passed by the Assistant to the Deputy Commissioner. Appeal to the Assistant to the Deputy Commissioner lies under Rule 36A of the Administration of Justice and Police (Khasi Jaintia) Rules 1937 and such appeal is required to be filed within thirty days.

Learned counsel Mr. K. Paul appearing for the petitioner submitted that though the learned Deputy Commissioner in condoning the huge delay of more than 4 ½ years, the order which was impugned before him was dated 09.12.2014 whereas, the appeal was filed belatedly in October 2018. It is contended that the respondents in their application seeking condonation of delay did not specify the number of days by which the appeal was time barred. The authority below has condoned the delay by perfunctory order without giving any convincing reasons.

Learned counsel for the respondents has submitted that the respondents originally approached this Court by filing CRP No. 1 of 2015 which was decided by the learned Single Judge of this Court vide order dated 10.04.2015. Learned counsel for the petitioner herein, raised an objection therein that the revision petition would not directly lie before this Court as the respondents have the remedy under Rule 36A (Supra) before the Deputy Commissioner. This Court upholding that objection remanded the matter to the Deputy Commissioner, East Jaintia Hills District, Khliehriat to register the appeal and hear the same after issuing notice to all the parties concerned and dispose of in accordance with law. This Court also passed a status quo vide order dated 14.01.2015 to be continued till the matter is taken up.

It is contended that the respondents were under the bonafide impression that since the matter has been remanded to the Deputy Commissioner and they would receive notice from him, they did not take any steps to file appeal. When the order was clarified subsequently by the learned single Judge vide order dated 01.10.2018, the respondents filed the appeal without delay which has been rightly condoned by the learned Assistant to the Deputy Commissioner.

After hearing the learned counsel for the parties and perusing of the impugned orders and the material on record, I find that the Single Bench of this Court vide order dated 10.04.2015 while sustaining the objections of the petitioner herein, as to maintainability of revision petition on the ground that remedy against the order then impugned before this Court was available to the respondents by way of appeal under Rule 36A (Supra), passed the following order:-

"On perusal of the provision of section 36-A it appears that an appeal from the decision of the Assistant to the Deputy Commissioner shall lie before the Deputy Commissioner.

Therefore, I am of the considered view that, it is a fit case to be remand back to the court of the Deputy Commissioner to register the appeal and to hear the matter after issuing notice to all the parties concerned and to dispose of the matter in accordance with law.

In the meantime, the status quo order passed by this court vide order dated 14.01.2015 shall continue till the matter is taken up by the Deputy Commissioner.

With this observation and direction, the instant petition is allowed to that extent and stands disposed of."

Subsequently, the Single Bench of this Court clarified the aforesaid order on the application filed by the respondents herein, vide order dated 01.10.2018 which reads as under:-

"On perusal of the said order, it is clear that this Court had made it clear that appeal lies before the Deputy Commissioner, East Jaintia Hills District, Khliehriat and Deputy Commissioner was directed to register the appeal and hear the matter, so now further direction is not necessary as the appeal has not been filed till date before the Deputy Commissioner, East Jaintia Hills District, Khliehriat submitted by the learned counsel for the respondents.

I also make it clear that the record of this Court cannot be transmitted to the learned Court below. Besides that, condonation of delay if any, will be considered by the Deputy Commissioner, East Jaintia Hills District, Khliehriat.

With this, the Misc. case is dismissed and stands disposed of."

It is in this background that the learned Deputy Commissioner has condoned the delay and entertained the appeal on merits. Even though it may be true that it was not a case of remand but the Deputy Commissioner, East Jaintia Hills District, Khliehriat was directed to register the appeal and hear the matter after notices were served on the parties. Undeniable fact is that the order passed by the High Court did so direct and therefore, if the respondents has acted under the impression, even though erroneous, that they would receive notice, such impression may be erroneous but was bonafide. This is why the respondents had to again come to the Court seeking clarification and the order was clarified by the Single Bench of this Court.

The order of clarification was passed by this Court on 01.10.2018. It is not disputed that the appeal was filed before the Deputy Commissioner, East Jaintia Hills District, Khliehriat in the month of October 2018 itself.

In view of the facts and circumstances of the case, the order passed by the Assistant to the Deputy Commissioner condoning delay cannot be faulted. Considering however that already sufficiently long period has passed from the date of the original order, I deem it appropriate to direct Assistant to the Deputy Commissioner to finally hear and decide the appeal within three months from the date next fixed before him.

Revision petition is dismissed with aforementioned direction.