1 S/9 S.B. CIVIL WRIT PETITION NO.2552/2006. Wali Khan Vs. State of Rajasthan & Ors. Date of Order :: 8th January 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Kuldeep Mathur, for the petitioner. Mr. R. Dave, A.G.C., for the respondents. .... BY THE COURT: The petitioner, having a mining lease for mineral masonary stone near village Bhujawar, Khasra No.34, Tehsil Luni, District Jodhpur, has preferred this writ petition being aggrieved of the order dated 17.11.2005 (Annex.10) issued by the Mining Engineer, Jodhpur with reference to a letter dated 18/19.10.2005 emanating from the Collector, Jodhpur and informing that in view of the said letter of the Collector and the objections raised by the local residents and in view of the security of the premises of a temple, the prohibition put on any mining activity within the radius of 500 meter from the temple premises remains in force; and as the mining area in question falls within the said prohibited zone, the petitioner ought to refrain from carrying on any mining activities and to show cause as to why his mining lease be not cancelled. On 22.05.2006, this Court noticed the contentions of the learned counsel for the petitioner with reference to sub-clause (26) of Rule 18 of the Rajasthan Minor Mineral Concession Rules, 1986 ('the Rules of 1986) and Rule 70 of the said Rules of 1986 and issued notice to the respondents for filing reply within four weeks 2 but rejected the stay application finding it not to be a fit case for grant of interim order at that stage. In response to the show cause notice, the respondents have filed reply and have, inter alia, raised the objection on competence of this writ petition particularly with reference to the fact that the petitioner has got alternative remedy under the Rules of 1986 and there is no reason for the petitioner not to avail of the statutory remedy; and also on the ground that the matter involves disputed questions of fact that cannot be resolved in the summary proceedings under Article 226 of the Constitution of India. During the course of arguments, learned counsel for the petitioner, in all fairness, submitted that in view of the objections as taken by the respondents, the petitioner shall stand advised not to proceed with this writ petition any further and to avail of alternative remedies in accordance with law but has stated an apprehension that 90 days' limitation from the date of communication of the order being provided for an appeal under Rule 45 of the Rules of 1986, if the appellate authority would decline to entertain the appeal of the petitioner only on the ground of limitation, the petitioner might suffer irreparable injury; and submitted that in the circumstances of the case where the petitioner presented this writ petition on 08.05.2006 and show cause notice was issued to the respondents on 22.05.2006 and then, the matter remained pending consideration before this Court, the appeal to be submitted by the petitioner deserves to be considered on merits and to that extent, the rights of 3 the petitioner may be safeguarded. Learned Additional Government Counsel Mr. Rameshwar Dave, in equal fairness, has not put such aspect into much contention and submitted that under proviso to Rule 45, the appellate authority may admit the appeal beyond the period of limitation if the appellant satisfies the appellate authority that he had sufficient cause for not filing the appeal within the said period and, therefore, the petitioner could make proper application for consideration of the appellate authority in that regard. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, the petitioner is permitted to withdraw this writ petition with liberty for him to avail of alternative remedies in accordance with law and with observation that if any question of limitation arise and the petitioner makes a proper application for condonation of delay and consideration of the matter on merits, the appellate authority would be expected to deal with the same dispassionately and objectively while keeping in view the fact that till this time, the matter has remained pending consideration before this Court after a show cause notice was issued on 22.05.2006. With the observations and liberty aforesaid, the writ petition is dismissed as withdrawn. (DINESH MAHESHWARI), J. Mohan/