Full Judgment Text
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PETITIONER:
MADAN GOPAL RUNGTA
Vs.
RESPONDENT:
SECRETARY TO THE GOVERNMENT OFORISSA
DATE OF JUDGMENT:
16/03/1962
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
AIYYAR, T.L. VENKATARAMA
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
AYYANGAR, N. RAJAGOPALA
CITATION:
1962 AIR 1513 1962 SCR Supl. (3) 906
CITATOR INFO :
D 1963 SC1124 (6,7)
R 1964 SC1473 (12)
R 1965 SC 458 (29)
R 1970 SC 1 (4)
RF 1974 SC1380 (22,30)
RF 1987 SC2111 (13)
F 1990 SC 10 (11)
ACT:
Writ-High Court-If can issue writs beyond its territorial
jurisdiction-Mineral Concession Rules, 1949, 6,57,59,60-
Constitution of India Art. 226.
HEADNOTE:
The State Government of Orissa rejected the application of
the appellant who had applied for grant of a mining lease in
December 1957 on the ground that the State Government
proposed to arrange for the exploitation of the area in the
public sector. The appellant made an application for review
to the Central Government under r. 57 of the rules of
Mineral Concession Rules, 1949. This application was
rejected by the Central Government in June 1959. Thereupon
the appellant filed a petition under Art. 226 of the
Constitution in the High Court of Orissa. This petition was
dismissed by the High Court on the ground that it had no
jurisdiction to deal with the matter under Art. 226 as the
final order in the case was passed by the Central Govern-
ment, which was located beyond the territorial jurisdiction
of the High Court. The appellant came up by special leave
to appeal to the Supreme Court. The main question is as to
the limit of the jurisdiction of the High Court under Art.
226. The appellant contended that as the Central Government
had merely dismissed the review petition, the effective
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order rejecting the, appellant’s application for the mining
lease was that of the State Government and therefore the
High Court would have jurisdiction to grant a writ under
Art. 226.
Held. that the High Court was right in holding that it had
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no Jurisdiction to issue a writ under Art. 226 in the
present case as the final order in this case was that of the
Central Government which was not situate within the terri-
tories over which the High Court had jurisdiction. This
order of the Central Government in effect rejecting the
application of the appellant. for the grant of the mining
lease to him and confirming the rejection of the application
of the appellant by the Orissa Government is clearly not
amenable to the jurisdiction of the High Court of Orissa
under Art. 226 in view of the fact that the Central
Government is not located within the territories subject to
the jurisdiction of the Orissa High Court. It would
therefore have been useless for the Orissa High Court to
issue a writ against the Orissa Government for the Central
Government’s Order rejecting the application of the
appellant for the grant of the mining lease would still
stand.
Held, further that quite apart from the theoretical question
of the merger of the State Government’s Order with the
Central Government’s Order, the terms of r. 60 of the
Mineral Concession Rule 1949 make it perfectly clear that
whenever the matter is brought to the Central Government
under r. 59, it is the order of the Central Government which
is effective and final. So where there is a review petition
and the Central Government passes an order on such petition
one way or the other it is the Central Government’s Order
that prevails and the State Government’s Order must in those
circumstances merge in the order of the Central Government.
Election Commission India v. Saka Venkata Subba Rao, (1953)
S.C.R. 1144, Lt. Col. Khajoor Singh v. Union of India,
(1961) 2 S.C.R. 828, A. Thangal Kunju Musaliar v. M.
Venkitachalam Potti (1955) 2 S.C.R. 1196 relied on.
Shivji Nathubhai v. The Union of India, (1960) 2 S.C.R. 775,
referred to.
The State of Uttar Pradesh v. Mohammad Nooh (1958) S.C.R.
595, not applicable.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 407/61.
908
Appeal by special leave from the judgment and order dated
August 23, 1960, of the Orissa High Court in O.J.C. No. 103
of 1959.
N.O. Chatterjee and P. K. Chatterjee, for the appellant,
C. K. Daphtary, Solicitor-General of India, B. R. L.
Iyengar and P. D. Menon, for the respondents.
B.M. Patnaik, S. N. Andley, Rameshwar Nath and P. L.
Vohra, for the Intervener.
1962. March 16. The Judgment of the Court was delivered by
WANCHOO, J.-- This is an appeal by special leave against the
judgment of the Orissa High Court. The brief facts
necessary for present purposes are these. The appellant
made an application to the State Government of Orissa in
1949 for grant of a mining lease for manganese ore over an
area comprising 5400 acres situated in the district of
Keonjhar. The appellant was the first applicant for the
lease of the aforesaid area, and subsequently other persons
applied for lease of the same area including Messrs. Tata
from and Steel Company Limited hereinafter referred to as
Tatas), the intervener in the present appeal. The
Government of Orissa decided to grant the in favour of
Tattas and in January 1956 referred the matter to the
Central Government for its approval under r. 32 of the
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Mineral Concession Rules, 1949 hereinafter referred to as
the Rules), which lays down that if more than one
application regarding the same, land is received, preference
shall be given to the application received first, unless the
State Government, for any special reason, and with the prior
approval of the Central Government decides to the contrary.
The appellant made a representation to the Central
Government against the recommendation of the
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State Government. Eventually, on April 9, 1957, the Central
Government turned down the recommendation of the State
Government about the grant of the mining lease to Tatas. It
also directed that the applications received prior to the
application of Tatas should be considered according to the
Rules but added that in case the Government of Orissa
desired to work the area on a departmental basis, the
Central Government would have no objection to consider a
proposal for that purpose. Thereafter the State Government
rejected the application of the appellant in December 1957
on the ground that the State Government proposed to arrange
for the exploitation of the area in the public sector.
This was followed by an application for review to the
’Central Government under r. 57 of the Rules. This
application was rejected by the Central Government in June
1969. Thereupon the appellant filed a petition under Art.
226 of the Constitution in the High Court in July 1959.
This petition was dismissed by the High Court on the ground
that it had no jurisdiction to deal with the matter under
Art. 226 as the final order in the case was passed by the
Central Government which was located beyond the territorial
jurisdiction of the High Court. The appellant then applied
to the High Court for a certificate to appeal to this Court,
which was rejected. He then asked for special leave from
this Court, which was granted; and that how the matter has
come up before us.
The main question raised before us is the limit of the
jurisdiction of the High Court under Art. 226 in
circumstances like those in the present case. The
contention on behalf of the appellant is that as the Central
Government bad merely dismissed the review petition, the
effective order rejecting the appellant’s application for
the mining lease was that of the State Government and
therefore the High Court would have jurisdiction to grant a
writ
910
under Art. 226, and that the principle laid down in Election
Commission India v. Saka Venkata Subba Rao(l) would not
apply. Reliance in this connection has been placed on the
decision of this Court in The State of Uttar Pradesh v.
Mohammed Nooh(2).
It is well settled by a series of decisions of this Court
beginning with Saka Venkata Subba Rao’s case(1) that there
is two-fold limitation on the power of the High Court to
grant a writ under Art. 226. These limitation are firstly
that the power is to be exercised throughout the territories
in relation to which the High Court exercise jurisdiction,
that is to say, the writs issued by the High Court cannot
run beyond the territories subject to its jurisdiction, and
secondly, that the person or authority to whom the High
Court is empowered to issue such writs must be within those
territories, which clearly implies that they must be
amenable to its jurisdiction either by residence or location
within those territories. The view taken in this case has
been recently reaffirmed by this Court in Lt. Col. Khajoor
Singh v. Union of India. (3) Prima facie, therefore, as the
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final order in this case was passed by the Central
Government which is not located within the territories over
which the High Court has jurisdiction, the High Court will
have no power to grant a writ in this case.
Learned counsel for the appellant however relies on the
decision in Mohd. Nooh’s case (2) where it was held that it
was not correct to say that an order of dismissal passed on
April 20, 1948, merged in the order in appeal therefrom
passed in May 1949, and the two orders in turn merged in the
order passed in revision on April 22, 1,950, or that the
original order of dismissal only became final on the passing
of the order in revision. It was further held that the
order of dismissal was operative on its
1. [1953] S.C.R. 1144. 2. [1958] S.C.R. 595.
3. [1961] 2 S.C.R. 828.
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own strength and therefore no relief under Art. 226 could be
granted against the order of dismissal passed in 1948 as
Art. 226 was not retrospective in operation. It is urged
that if the order of dismissal in that case did not merge in
the final order of revision which was passed in April 1950,
after the Constitution came into force, there was no reason
why the order of the State Government should be taken to
have merged in the order of the Central Government in this
case so as to deprive the appellant of his remedy in the
High Court under Art. 226. We are of opinion that the
principle of Mohd. Nooh’s Case(1) cannot apply in the
circumstances of the present case. The question there was
whether the High Court would have power to issue a writ
under Art. 226 in respect of a dismissal which was effective
from 1948, simply because the revision against the order of
dismissal was dismissed by the State Government in April
1950 after the Constitution came into force. It was in
those circumstances that this Court held that the dismissal
having taken place in 1948 could not be the subject-matter
of an application under Art. 226 of the Constitution for
that would be giving retrospective effect to that Article.
The argument that the order of dismissal merged in the order
passed in appeal therefrom and in the final order of
revision was repelled by this Court on two grounds. It was
held (firstly) that the principle of merger applicable to
decrees of courts would not apply to orders of departmental
tribunals, and (secondly) that the original order of
dismissal would be operative on its own strength and did not
gain greater efficacy by the subsequent order of dismissal
of the appeal or revision, and therefore the order of
dismissal having been passed before the Constitution would
not be open to attack under Art. 226 of the Constitution.
We are of opinion that the facts in Mohd. Nooh’s case (1)
were of a special kind and
(1) [1958] S.C.R. 595.
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the reasoning in that case would not apply to the facts of
the present case.
Further, in A. Thangal Kunju Musaliar v. M. Venkitachalam
Potti (1), though this Court was considering a matter in
which the question which is before us was not directly in
issue, it had occasion to consider certain decisions of
certain High Courts which dealt with oases similar to the
present case : (see p. 1213). In those decisions orders had
been passed by certain inferior authorities within the
territories subject to the jurisdiction of the High Courts
concerned, but they had been taken in appeal before superior
authorities which were located out. side the territories
subject to the jurisdiction of the High Courts concerned.
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In those circumstances the High Courts had held that the
order of the inferior authorities had merged in the orders
of the authorities. This Court apparently approved of the
view taken by the High Courts in those cases on the ground
that a writ against the inferior authority within the
territories could not be of any avail to the petitioners
concerned in those oases and could give them no relief for
the orders of the superior authority outside the
jurisdiction would remain outstanding and operative against
them. Therefore, as no writs could be issued against the
outside authorities, this Court was of the view that the
High Courts were right in dismissing the petitions, as any
writ against the inferior authority which is within the
jurisdiction of the High Court, in view of the orders of the
superior authority, would be infructuous. The position in
the present case is similar to that envisaged above. The
Orissa Government rejected the application of the appellant
for grant of the mining lease. The appellant being
aggrieved by that order went in review to the Central
Government under the Rules and that review petition was
dismissed so that in effect the Central
(1)[1955] 2 S.C.R. 1196,
913
Government also rejected the application of the ,appellant
for grant of the mining lease to him. It is not in dispute
that if the Central Government was so minded it could have
allowed the review and directed the Orissa Government to
grant mining lease to the appellant. Therefore when the
Central Government rejected the review petition, it in
effect rejected the application of the appellant for the
grant of the mining lease to him. This order of the Central
Government in effect rejecting the application of the
appellant for the grant of the mining lease to him and
confirming the rejection of the application of the appellant
by the Orissa Government is clearly not amenable to the
jurisdiction of the High Court of Orissa under Art-226 in
view of the fact that the Central Government is not located
within the territories subject to the jurisdiction of the
Orissa High Court. It would therefore have been useless for
the Orissa High Court to issue a writ against the Orissa
Government for the Central Governments order rejecting the
review petition and therefore in effect rejecting the
application of the appellant for grant of the mining lease
would still stand This is made clear by r. 60 of the Rules,
which provides that "the order of the Central Government
under Rule 59 and subject only to such order, any order of a
State Government under these rules, shall be final".
Clearly therefore r. 60 provides that where there is a
review petition against the order passed in the first
instance by the State Government, the order of the Central
Government passed in review would prevail and would be the
final order dealing with an application for a mining lease
under the Rules. Therefore, quite apart from the
theoretical question of the merger of the State Government’s
order with the Central Government’s order, the terms of r.60
make it perfectly clear that whenever the matter is brought
to the Central Government under r. 59, it is the order of
the Central Government which is effective and final. In
these
914
circumstances we are of opinion that the High Court was
right in holding that it had no jurisdiction to issue a writ
under Art. 226 in the present case as the final order in
this case was that of the Central Government which was not
situate within the territories over which the High Court has
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jurisdiction.
Our attention in this connection was drawn to Shivji
Nathubhai v. The Union of India (1). In that case a mining
lease had been granted by the State Government to a
particular person and there was a review petition against
the grant of that mining lease. The order granting the
mining lease was set aside on review without notice to the
person to whom the lease had been granted. In that connec-
tion a question arose whether the person to whom the State
Government had granted the lease had any interest to enable
him to make an application under Art. 226. It was then
pointed out by this Court that under the Rules the order of
the State Government would be effective as there was no re-
quirement that it was not final until confirmation by the
Central Government. That case however is of no assistance
to the appellant for where there is a review petition and
the Central Government passes an order on such petition one
way or the other it is the Central Government’s order that
prevails and the State Government’s order must in those
circumstances merge in the order of the Central Government.
The observations in that case on which the appellant relies
were made in another connection and can have no bearing on
the question before us, where an order has been passed by
the Central Government on review and it is that order which
is made final by r. 60 and which stands in the way of the
appellant. There is therefore no force in this appeal and
it is hereby dismissed with costs.
Appeal dismissed.
(1) [1960] 2 S.C.R. 77S.
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