STATE OF BIHAR Vs. BIRLA GWALIOR P LTD

JUDGEMENT

(1.) This is an application by the State of Bihar for a certificate of fitness for appeal to the Supreme Court under Articles 132 (1) and 133 (1) of the Constitution. It appears that on the application filed by the respondent No. 1, Birla Gwalior Private Limited under Article 226 (1) of the Constitution, Anil Kumar Sen, J., by order dated December 21, 1970, issued a writ setting aside and quashing an order dated November 11, 1967 passed by the State of Bihar determining the mineral lease in favour of the said company and also directing the said Government not to give effect to the same. The State of Bihar, it appears, long after the order of December 21, 1970, on or about July 3, 1971, filed an application under Section 5 of the Limitation Act along with the memorandum of appeal praying, inter alia, for condonation of the delay that had occurred in filing the appeal and also for hearing of the appeal on merits after condonation of delay. The said application was heard by a Division Bench of this Court constituted by the then Chief Justice and my learned brother. The said application was dismissed by an order dated November 10, 1971, on the view that the delay for the period from March 13, 1971, till July 3, 1971, in presenting the memorandum of appeal was not explained. The present application has been filed, as already stated, for a certificate for appeal to the Supreme Court against the said order.

(2.) Mr. Hari Prasanna Mukherjee, learned Advocate appearing for the petitioner, State of Bihar, has urged that the order dismissing the application under Section 5 of the Limitation Act was in fact a final order dismissing the appeal itself and putting an end to the proceeding. He further contended that the application is governed by the provisions of Article 133 (1) as amended by the Constitution 30th Amendment Act and the provisions thereof as amended have not yet come up for consideration before the Supreme Court. The provisions in the said Article as also under Article 132 (1) to the effect that "the case" is to involve a substantial question of law means and implies the entire lis between the concerned parties. He also referred to the judgment of the original court to show that it involved substantial questions of law of public importance requiring adjudication by the Supreme Court. Mr. Mukherjee contended that the tests laid down in the said Articles were thus satisfied and the certificate prayed for should be granted.

(3.) It appears to us however, that the order rejecting an application under Section 5 of the Limitation Act does not of its own force determine any rights between the parties. As has been held in Prem Chand v. State of Bihar, an order to be a final order must of its own force bind or affect the rights of the parties. The effect of the order of the Division Bench was not to condone the delay in presenting the appeal and in the said judgment there was no adjudication of the rights of the parties involved in the original writ proceeding. Mr. Mukherjea's contention that by the order under challenge the entire litigation was put to an end as there was no further scope for agitating the matter also has no any substance. It would appear, as we have already indicated, that the impugned order did not concern itself with the rights of the parties in the proceeding which was already determined in the original trial and the Division Bench only refused to condone the delay in the facts and circumstances of the case.