1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR SPL. APPL. WRIT No. 279 of 2000 PRABHU LAL V/S BOARD OF REVENUE & ORS Mr. MANISH SHISHODIA, for the appellant / petitioner Mr. RL JANGID, AAG for the respondent Date of Judgment : 19.5.2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. JUDGMENT BY THE COURT : ( PER HON'BLE GUPTA, J.) This appeal seeks to challenge the order of the learned Single Judge dt. 4.2.2000, whereby the writ petition was dismissed. In the appeal, on 21.4.2000 show cause notice was issued, and vide interim order recovery under challenge was stayed. Then, after service the appeal was admitted on 10.1.2003. In the meanwhile when the matter came up for consideration, the learned counsel for the appellant filed an application for submitting additional ground, which application came to be allowed vide order dt. 13.9.2002, and amended memo of appeal was filed, as appears from the order sheet dt. 26.9.2002. 2 However, when the matter was argued today the additional grounds raised by way of amendment, were not argued, and therefore, they are not gone into. Then, the relevant facts of the case are, that the learned Additional Collector passed the order Annexure-5 on 22.12.1988, under Section 89(7) of the Rajasthan Land Revenue Act, directing an amount of Rs.1,70,00/- to be recovered from the appellant, by way of penalty, @ Rs.50 per tonne, for the illegal excavation of mineral, said to have been done by the appellant. As appears from the said order, that the Patwari submitted a report before Naib Tehsildar, that the appellant has undertaken illegal excavation of mineral, in Siwai Chak Araji No.109 and 116/101, in an area of 51,000 cubic feet, and thus excavated 3400 tonne of stones, thereupon notices were issued to the appellant, and inquiry was held, and the said order was passed. Against this order an appeal was filed before the Revenue Appellate Authority; which was dismissed vide order dated 6.7.1989, on the ground of being barred by time. The appeal was filed on 9.5.1989, and in the application under Section 5 of the Limitation Act the appellant had mentioned, that the appeal is being filed on 11.4.1989, while despite receiving copy on 11.4.1989, the appeal was filed on 9.5.1989. Thus, 3 no sufficient cause is made out. This order of the learned Revenue Appellate Authority is produced as Annex.14. Against this order, further appeal was filed before the Board of Revenue, which too was dismissed by the Board of Revenue, vide order Annex.15, finding that no substantial ground of law is involved in the appeal, therefore, the same was dismissed summarily. Learned Single Judge also found, that the appellant had not been diligent to approach the Court within reasonable time, and no explanation has been furnished, for approaching the Court after more than a year from the date of order passed by the Board of Revenue, and the petitioner is thus, not entitled for any indulgence in equitable jurisdiction. Learned Single Judge also found, that even on merits, the finding of fact had been recorded by the Addl. Collector, that the petitioner had been illegally mining, and that he could not produce any document even before this Court, to show, as to under what circumstances, and under what authority of law, he had excavated in the said Khasra No.116/101. Then finding the scope of this Court in judicial superintendence to be limited, which cannot be used to upset the conclusions of facts, the writ petition was dismissed. Assailing the impugned order it was submitted, that all said and done, the appeal of the appellant was dismissed by the Revenue Appellate 4 Authority, as time barred. According to the learned counsel, the order of the Addl. Collector is dated 22.12.1988, and the appeal was filed on 9.5.1989, while he came to know of the order dated 22.12.1988 on 19.3.1989, then he inspected the file on 20.3.1989, and applied for copy on the same day, which was received on 11.4.1989. In such circumstances, the delay in filing appeal was required to be condoned, in view of the judgments of Hon'ble the Supreme Court, relied upon by the learned counsel, including that in the case of Municipal Corporation, Gwalior Vs. Ramcharan, reported in 2002 DNJ (SC) 323. It was also submitted, that the learned Single Judge was not correct in going into the merits of the case, as merits of the case were to be gone into by the Revenue Appellate Authority, and the Board of Revenue, which was not gone into by the authorities below, inasmuch as, on merits the case of the appellant before the authorities below was, that he had excavated mineral from Araji No.109, from the portion, which was granted to him for mining purposes. Learned counsel for the State on the other hand submitted, that the finding, about no sufficient cause having been made out, is a pure finding of fact, and is not required to be interfered with in intra- court appeal jurisdiction of this Court, and in any case, even if this Court is inclined to grant any indulgence to the appellant, since the recovery of a huge amount is already stayed for all these number of years, the appellant should be put to stringent terms. 5 We have considered the submissions, and find, that may be very strictly speaking, sufficient cause may not have been made out, but then, by putting the appellant on stringent terms, in peculiar circumstances of the case, the delay is required to be condoned. Accordingly, the appeal is allowed, and it is directed, that if the appellant deposits entire amount determined under Annex.5, along with interest uptill date, within a period of two months from today, before the Addl. Collector, the appeal filed before the Revenue Appellate Authority would stand restored, and shall be heard by Revenue Appellate Authority on merits, treating the appeal to be filed within limitation, obviously in that event, the orders Annex.14 and 15 would stand set aside. It is further clarified, that if the appellant fails to deposit the aforesaid amount within the time prescribed above, the present appeal will stand automatically dismissed without any further reference to the court, and the impugned orders shall stand revived. The appellant will also pay cost of Rs.10,000/- of this appeal. The solvent security of the appellant furnished in pursuance of the interim orders of this Court, passed from time to time, shall stand discharged on the appellant depositing the amount. It is also directed that in the event of the appellant ultimately succeeding in defending the demand, then in that event the amount being deposited under this order shall be 6 refunded to the appellant forthwith. In that event any delay in refunding the amount will attract the liability of interest also on the authority detaining the amount. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /Sushil/