Appeal No 40761
908 Appeal by special leave from the judgment and order dated August 23 1960 of the Orissa High Court in OJC No 103 of 1959
NO 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
BM Patnaik section N Andley Rameshwar Nath and P L Vohra for the Intervener
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 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 909 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 article 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 article 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 article 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 article 226 and that the principle laid down in Election Commission India vs Saka Venkata Subba Raol would not apply
Reliance in this connection has been placed on the decision of this Court in The State of Uttar Pradesh vs Mohammed Nooh2
It is well settled by a series of decisions of this Court beginning with Saka Venkata Subba Rao s case1 that there is two fold limitation on the power of the High Court to grant a writ under article 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 vs Union of India
3 Prima facie therefore as the 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 1950 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  2  3  911 own strength and therefore no relief under article 226 could be granted against the order of dismissal passed in 1948 as article 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 article 226
We are of opinion that the principle of Mohd Nooh s Case1 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 article 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 article 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 article 226 of the Constitution
We are of opinion that the facts in Mohd Nooh s case 1 were of a special kind and 1  912 the reasoning in that case would not apply to the facts of the present case
Further in A Thangal Kunju Musaliar vs 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
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 11955 2 SCR 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 r60 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 article 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 jurisdiction
Our attention in this connection was drawn to Shivji Nathubhai vs 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 article 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


Summary:
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 article 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 article 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 article 226
The appellant contended that as the Central Government had merely dismissed the review petition the effective 907 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 article 226
that the High Court was right in holding that it had no Jurisdiction to issue a writ under article 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 article 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 vs Saka Venkata Subba Rao   Lt Col Khajoor Singh vs Union of India   A Thangal Kunju Musaliar vs M Venkitachalam Potti  relied on
Shivji Nathubhai vs The Union of India   referred to
The State of Uttar Pradesh vs Mohammad Nooh 1958 SCR 595 not applicable