ases Nos
300 to 304 of 1951
Appeals under article 1321 of the Constitution of India from a judgment dated 2nd August 1951 of the High Court of Judicature at Orissa Ray CJ and Narasimham J in Miscellaneous Judicial Cases Nos 126 127 128 129 and 130 of 1951
MC Setalvad Attorney General for India G N Joshi with him for the appellant in all the appeals
NC Chatterjee HJ Umrigar and AN Roy with him for the respondent in Case No 300 of 1951
Roshan Lal for the respondents in Cases Nos 301 and 304
NC Chatterjee A N Roy with him for the respondent in Case No 302 of 1951
NC Chatterjee A N Roy and AN Sinha with him for the respondent in Case No 303 of 1951
October 25
the Judgment of the Court was delivered by KANIA CJ
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 andor 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 1721B 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 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 CJ 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 mayarise 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 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
1Notwithstanding 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 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 PA Mehta
Agent for the respondent in Case No 300  SP Varma
Agent for the respondent in Cases Nos 301 and 304 Ganpat Rai
Agent for the respondent in Cases Nos 302 and 303 PK Chatterjee


Summary:
The High Court cannot make a direction under article 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 article 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