Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
THE STATE OF ORISSA
Vs.
RESPONDENT:
MADAN GOPAL RUNGTA.THE STATE OF ORISSAV.ARJUN LADHA.THE STAT
DATE OF JUDGMENT:
25/10/1951
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
1952 AIR 12 1952 SCR 28
CITATOR INFO :
F 1962 SC1044 (5)
R 1962 SC1305 (22)
R 1964 SC 685 (10)
R 1965 SC 745 (137)
R 1966 SC1441 (4)
E 1968 SC 733 (9,10)
RF 1973 SC2720 (9)
RF 1975 SC2238 (19)
F 1976 SC 578 (33)
RF 1980 SC 962 (59)
F 1983 SC1272 (10)
ACT:
Constitution of India, Art. 226--Writs granting more
interim relief pending institution of civil suit without
deciding rights of parties--Legality.
HEADNOTE:
The High Court cannot make a direction under Art. 226 of
the Constitution for the purpose of granting interim relief
only pending the institution of a suit merely because the
suit could not be instituted until after the expiry of 60
days from the date of a notice under Sec. 80 of the Civil
Procedure Code and in the meanwhile, unless protected by the
Court the applicant may suffer irreparable loss.
Even though writs can be issued under Art. 226 for
purposes other than the enforcement of fundamental rights,
the concluding words of the article have to be read in the
context of what precedes the same, and the existence of a
right is the foundation of the exercise of jurisdiction of
the Court under this article.
An interim relief can be granted only in aid of, and as
ancillary to, the main relief which may be available to the
party on final determination of his rights in a suit or
proceeding.
29
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Cases Nos. 300 to 304 of
1951.
Appeals under Art. 132(1) of the Constitution of India
from a. judgment dated 2nd August, 1951, of the High Court
of Judicature at Orissa (Ray C.J. and Narasimham J.) in
Miscellaneous Judicial Cases Nos. 126, 127, 128, 129 and
130 of 1951.
M.C. Setalvad, Attorney-General for India (G. N. Joshi,
with him) for the appellant in all the appeals.
N.C. Chatterjee (H.J. Umrigar and A.N. Roy, with him)
for the respondent in Case No. 300 of 1951.
Roshan Lal for the respondents in Cases Nos. 301 and
304.
N.C. Chatterjee (A. N. Roy, with him) for the respondent
in Case No. 302 of 1951.
N.C. Chatterjee (A. N. Roy and A.N. Sinha, with him) for
the respondent in Case No. 303 of 1951.
1951. October 25. the Judgment of the Court was
delivered by
KANIA C.J.--These are five companion appeals from the
judgment of the High Court at Orissa, delivered on five
petitions filed by the respondent in each of the appeals, to
obtain from the Court a writ of mandamus and/or directions
under article 226 of ’the Constitution of India.
Each of the respondents alleged that between 1941 and
1947 he had agreed to take from the Ruler of Keonjhar a
mining lease and had entered into possession of the area.
Some of the petitioners alleged that they had spent money on
the development of the mines and installed machinery to work
the same. It is however common ground that there was no
registered lease in favour of any of the respondents before
1947. On the 14th December, 1947, the Ruler of Keonjhar
entered into a merger agreement with the Dominion of India
and as from the 1st January, 1948, the State was merged in
the Dominion of India. After signing the merger agreement
the Ruler gave registered
30
leases on the 27th December, 1947, to the respondents in
these appeals. In pursuance of the exercise of the powers
conferred on the Government of Orissa by section 4 of the
Extra Provincial Jurisdiction Act, 1949, read with Notifica-
tion No. 172/1B dated 23rd March, 1948, of the Government of
India, the Government of Orissa issued a notification dated
the 8th of June, 1949, declaring, inter alia, the said
leases to be void and not binding on it. This annulment was
made expressly on the ground that these commitments were not
reasonable and bona fide. Thereafter, the respondents, along
with others approached the Orissa Government to give them
leases and the State Government gave them temporary permits
to work the mines in November, 1949. On the 3rd July, 1951,
however they passed an order cancelling the temporary per-
mits and directed the respondents to remove their assets
appertaining to the respective mines within a fortnight. The
respondents thereupon filed the petitions before the Orissa
High Court praying for writs or directions in the nature of
mandamus against the State of Orissa directing them to
withdraw the notices dated the 8th of June and 3rd of July,
1951, and to forbear from acting upon or giving effect to
the same.
The Court, after noticing the rival contentions of the
parties and rejecting the contention that the State of
Orissa had cancelled the permits and were attempting to take
possession as an act of State, posed the question "whether
the law of annulment relied upon by the State was applicable
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
to the mining leases granted to the petitioners, or in the
alternative, whether the State had any right in law to
cancel the leases before the period mentioned therein."
Referring to the contention of the State rounded on the
acceptance by the respondents of the temporary permits and
the estoppel arising therefrom, Ray C.J. in his judgment
stated as follows :--"In determining the validity of this
contention (relating to the temporary permit and estoppel
arising therefrom) the circumstances under which these
applications were made and the legal implications of such
applications and the permissions granted under
31
them will have to be considered. It is remote from our
intention to express any opinion in this summary proceeding
as to the respective merits of the rival contentions. I am
however satisfied that in the context of events and in the
logic of circumstances attending thereto there is a case to
be tried." He next considered the scope of the writ of
mandamus and came to the conclusion that "at the moment" the
respondents had no alternative legal remedy, equally conven-
ient, beneficial and effectual because the respondents could
not file a suit till after the expiry of the period of sixty
days required for the purpose under section 80 of the Civil
Procedure Code and he thought that unless protected by the
Court in the meanwhile the respondents would undergo irrepa-
rable and irremediable loss of possession of the mining
leases involving a huge waste of labour, machinery and other
resources of equipments of immense value hardly capable of
being remedied by payments of money as compensation. The
Bench therefore passed an order dated 2nd August, 1951, as
follows :--"We direct that till three months from today or
one week after the institution of their (respondents’)
contemplated suit, whichever is earlier, the Government of
the State of Orissa should refrain from disturbing the
petitioners’ possession over the mining areas in question
and that thereafter this order will cease to have effect."
They gave further directions as to how the mines were to be
worked during the aforesaid period. Towards the end of the
judgment it was stated, "In the result, the petitions are
allowed in part to the limited extent indicated above."
Narasimham J. agreed with the order set out in the judgment
of the Chief Justice although his judgment shows the concur-
rence to be very halting. He stated that although he was
reluctant to exercise the powers under article 226 because
the present respondents could file a suit, yet as in view of
section 80 of the Civil Procedure Code there would be an
unavoidable delay resulting in irreparable loss to the
respondents he agreed that the order should be passed as
mentioned in the judgment of the Chief Justice,
32
Towards the end of his judgment he stated as follows:-"It
should however be clearly emphasized that the observations
contained in this judgment should not be taken as pre-judg-
ing any question which may.arise for the consideration of
the Civil Court in the event of the petitioners filing a
regular suit and seeking interim relief from that Court by
way of temporary injunction, appointment of receiver or
otherwise. If such an application is made, the questions as
to whether the petitioners have a prima facie case for trial
or whether such a suit is maintainable or whether the bal-
ance of convenience requires that they should be permitted
to remain in possession of the leasehold property till the
termination of the suit and other allied matters should all
be dealt with by the Court concerned without being influ-
enced in any way by the observations contained in this
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
judgment. Those observations have been made for the limited
purpose of granting temporary relief under article 226 and
are not intended to embarrass either party or the Court in
future litigation."
It appears that thereafter an application was made to
stay the operation of this order to enable the Government of
Orissa to appeal against the order of the 2nd of August.
The same Judges on the 6th of August stayed the operation of
the order for fifteen days and observed as follows :--"The
effect of the order (of 2nd August, 1951) is that except
giving them (respondents in these appeals) some interim
measure of relief for the period during which the petition-
ers were without remedy, we were not inclined to accept the
petition and issue a writ in the nature of mandamus, as
prayed for." The State of Orissa has come on appeal to us
and after hearing the arguments on both sides we came to the
conclusion that the order of the High Court could not be
sustained. We accordingly passed the following order on the
15th of October: "These five appeals are allowed and the
order of the High Court is set aside in each case. As the
High Court has passed no other orders on the petitions. and
indeed has stated that the Court was not prepared to
33
pass any ,other orders on the petitions, the petitions stand
dismissed. The respondents will pay the costs of the ap-
peals. We shall give our reasons later on." Our reasons are
these:
Article ,226 of the Constitution of India runs as fol-
lows:--
226. (1)"Notwithstanding anything in article 32, every
High Court shall have power, throughout the territories in
relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases any
Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred
by Part III and for any other purpose.
(2) The power conferred on a High Court by clause (1)
shall not be in derogation of the power conferred on the
Supreme Court by clause (2) of article
The language of the Article shows that the issuing of
writs or directions by the Court is not rounded only on its
decision that a right of the aggrieved party under Part II1
of the Constitution (Fundamental Rights) has been in-
fringed. It can also issue writs or give similar directions
for any other purpose. The concluding words of article 226
have to be read in the context of what precedes the same.
Therefore the existence of the right is the foundation of
the exercise of jurisdiction of the Court under this Arti-
cle. The judgment of the Orissa High Court under appeal,
however, shows that the Judges have decided nothing at all
in respect of the rights of the parties. Indeed they have
expressly stated that their observations should not in any
way be considered as deciding any of the rights or conten-
tions of the parties raised in the petitions. The whole
judgment shows that because of the requirement of section 80
of the Civil Procedure Code the present respondents could
not file a suit against the Government for at least sixty
days, the
5
34
respondent’s position should not in the interval be dis-
turbed and accordingly the Court gave the directions in its
order of the 2nd of August, 1951. If there was any doubt
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
about the nature of the relief desired to be granted by
the order of 2nd August the same Judges have made it per-
fectly clear by their order of the 6th of August, wherein
they have stated that except for these directions they were
not prepared to make any other order on the petitions. The
result therefore is that while the Judges declined to inves-
tigate and pronounce on the rights of the parties and ex-
pressly kept the determination thereof in abeyance in the
suit proposed to be filed by the present respondents, they
gave directions for interim relief till such suit was filed.
It must be noted that with the passing of the order of the
2nd August, 1951, containing directions in the nature of
interim relief the petitions were completely disposed of and
have not been kept pending for disposal. Those directions
embody therefore the final order passed by the Court on
these petitions. A preliminary objection was raised about
the maintainability of the appeals on the ground that no
final orders were passed on the petitions. That objection
must fail in view of the fact that with these orders the
petitions were disposed of finally and nothing further
remained to be done in respect of the petitions. The fact
that the operation of the order is limited to three months
or a week after the filing of the intended suit does not
prevent the order from being final.
On behalf of the appellant it was urged that the Court
had no jurisdiction to pass such orders under article 226
under the circumstances of the case. This is not a case
where the Court before finally disposing of a petition under
article 226 gave directions in the nature of interim relief
for the purpose of maintaining the status quo., The question
which we have to determine is whether directions in the
nature of interim relief only could be granted under article
226, when the Court expressly stated that it refrained from
determining the rights of the parties on which a writ
35
of mandamus or directions of a like nature could be issued.
In our opinion, article 226 cannot be used for the purpose
of giving interim relief as the only and final relief on the
application as the High Court has purported to do. The
directions have been given here only to circumvent the
provisions of section 80 of the Civil Procedure Code, and in
our opinion that is not within the scope of article 226. An
interim relief can be granted only in aid of and as ancil-
lary to the main relief which may be available to the party
on final determination of his rights in a suit or proceed-
ing. If the Court was of opinion that there’ was no other
convenient or adequate remedy open to the petitioners, it
might have proceeded to investigate the case on its merits
and come to a decision as to whether the petitioners suc-
ceeded in establishing that there was an infringement of any
of their legal rights which entitled them to a writ of
mandamus or any other directions of a like nature; and
pending such determination it might have made a suitable
interim order for maintaining the status quo ante. But when
the Court declined to decide on the rights of the parties
and expressly held that they should be investigated more
properly in a civil suit, it could not, for the purpose of
facilitating the institution of such suit, issue directions
in the nature of temporary injunctions, under article 226 of
the Constitution. In our opinion, the language of article
226 does not permit such an action. On that short ground
the judgment of the Orissa High Court under appeal cannot be
upheld..
Appeals allowed.
Agent for the appellant in all the appeals: P.A. Mehta.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
Agent for the respondent in Case No. 300 : S.P. Varma.
Agent for the respondent in Cases Nos. 301 and 304:
Ganpat Rai.
Agent for the respondent in Cases Nos. 302 and 303: P.K.
Chatterjee.
36