Mohamm<dbh.i Khudob..x Cll/tipa

•• Tira Blall of<Jujarol

WancAH ,1.

Morch JG.

906 SUPREME COURT REPORTS [1962) SUPP.

undor Ar_t. 31(1). \Ve may add that the same will apply to fecH collcctecl 11nder 8. I I ancl validated by sub-s. (2) of s. 29.R. Thcre iR therefore no force in

this contention. It iR hcrc:by rejected.

In the result, the petitions are dismissed with cost; i, One set of hearing fee.

Petilfon.y dismissed.

MADAN GOPAL RU~GTA

SECRETAH.YTO THE OOVERNMENTOF

ORISSA

(B. P. SINHA, p, B.

GA.mNDRAGADKAR, K. WANCHOO, N. RA.JAOOPALA AYYANOAH, and

T. L. VENKATARA)[A AIYAR, JJ.)

Writ-Iliyh Court-If can i.<.1uc writs beyond its territorial juristliclion-Mi11eral Conce..; sion /l1de.~, 194.9, 6,57 !J.'J 00-Constilution of India Ari. 226. ' '

The Stace Government of Orissa rejected the application of the appellant who had applied f()r grant of a mining least: in Decr.rnher 1957 on the ground that the State Government proposed to arrangr. for lhe exploitation of the area in the public si:ctor.

The appellant rnadr. an application for review to the Central Govern1nent under r. 57 of the rules of Mineral Concession Rub, 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 Oris'ia.

This petition was dismhsed by th~ 1-ligh Court on the ground that it had no j11risdiction to dc;1l \vi th the matter under l\rt. 226 a'i the final order in the case \\'a." passed by the Central Government, \vhich ,., as located beyond the territorial jurisdiction of the High Court. The appellant came up by special leave to appeal to the Supren1e Court. The 1nain question is as to the limit of the jurisdiction of the Iiigli Court under Art.

226. The appellant contended that as the Central Go, ern- !JlCnt had rq.crely dismissed the revcw petition, the effective

order rejecting the appellant's application for the mining lease was that of the State Government and therefore the High {!ourt would have juris.diction to grant a writ under Art. 226.

Held, that the High .Court was right in holding that it had no jurisdiction to issue a wiit under Art. 226 in the present case as the final order in this case was that of the Central Government which was not situa"te within the trrritories over which the High Court had jurisdiction. This order of the Central Gover.nment in effect rejecting the application of the appellant for the grant of the mining ]ease 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 Ccn tral Government is not located within the territories subject to the jurisdiction of the Orissa High Court. It would therefore ha\e 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 Gom, mission I nrlia v. l3aka V enkafa l:Jubha Rao,

(1953) S.C.R. 1144, Lt. Col. Kltajoo" Sin(lh v. Union of India,

(1961) 2 S.C.R. 828, A. T!iangol Kunju Musaliar v. M.

Venlcitaclmlam PoUi (1955) 2 S.C.R. 1196 relied on.

"Shivji Nathuh/; ai v. The Union of India, (1960) 2 S.C.R. 775, referred to.

The 8tate of U!U:-" Pradesh v. Mohammad Noolt, (1958) S.C.R. 595, not apphcable.

CIVIL APPELI, AT!'J JumswcTioN: Civil App<'~!

No. 407/61,

Madan Gopal

Rung ta

•• Secretary to lhe Governmeiit of Orissa

JI.Coo Oopal

Rwegta

8 ""''"9 lo '"' Ooomrm1 1 oJ Orilsa

W 1nch()Q J.

908 SUPREME COURT REPORTS [1962] SUPP.

Appeal by special leave from the judgment and or_der dated :'ugust :!3, I O~O, of the Orissa High Court 111 O.J.C .. \o. 103 of Hl.>9. ·

N. C. Chatterjee and P. /(. Chritterje_e, for the appellant.

C. I(' Dapftlar?J, Solicitor-General of India, B. R. L. Iyengar and P. D. Menm1., for the respondents.

R.111. Patnai!.:, S. N. Andley, lliimeshu-ar Nath and P. L. T' ol!ra, for the Intervener.

1962. March W.

The , Judgment of the Court was delivered by

WA~CITOO, 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 ap13lication to the State Govornmcnt of Orissa in 1949 for . grant of a mining lt>asc for manganese ore over an area comprising 5400 acres situated in the distric't of Keonjhar. The appellant was the first applicant for the lease of the aforesaid area, and subsequently other persons applied for lease of tho same area including Messrs. Tata Iron and Steel Company Limited {hereinafter referred to as Tatas). the intervener in the present a.ppca.l.

The Government of Orissa decided to grant. tlrn lease in favour of Tatas and in .Jan1111ry 19156 referred tho matter to the Central Government for its approval under r. :l2 of the Mineral Concession Rul<ls, 1949 ( hereina.fter reforred to as the Rulos), which lays down that if more than one application regarding the s11.1ne . lo.nd is rocoiverl, preference shall be givrn to tho application received first, unlessthe State Government, for any special reason, and with the prior approval of the Central Government doi:ides to the contrnrv.

The appellant made a represnntation to the Central Government against the reoommendation of the

- _l

a 8.c.k.

SUPREME "(JOURT REPORTS 909

State Government.

Eventually, on April 9, 1957, the Central Government tui; ned 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 tho 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 Govcrnrnfmt 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.

'.l'his was followed by an application for review to the Central Government under r. 57 of the Hules. This application was. rejected by the Central Government in June 1959. Thereupon the appellant filed a petition under Art. 2~6 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 appf'llant then applied to the High Court for a certificatt to appeal to t.hie Court, which was rejected. He thrn 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 , be jurisdictkn uf the High Court under Art. 226 in circumEtances like those in the present case. The contention on behalf of the appellant is that as the Central. Governm<'nt had merely dismissed the review pe\ition, t_he (•ffectivn order rejecting the appellant's application for the mining lease was that of the btate Government and therefore the Hig1 Court would have jurii.diction to grant a writ

Madan Gopal

•Rung ta •• $t(r1ltr.)' lo tJ., Goyernment of OrisstJ

Wane/Joo J.

l'6Z

Madan Uopal

Rungla •

•• StCf'elary to th~ Gooern.mml o/ Uri ua

910 SUPREME OOURT REPORTs (1962] SUPP.

under Art. 226, and that the principle Ia.id down in Election Cmmnission India v. Sc1ka Venkata Subba Rao(!) would not apply. Heliance in this connection has been placed on the decision of this Court in Tlte State of Utuir l'r1uksh v. Mohammed Nooli(').

It is well settled by a series of decisions of this Court beginning with Salra V enkata Subba Rao'B case(') ·

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 rourt exercise juri8diction, that is to Hay, the writs isaued by tho High Court cannot run beyond the territories subject to its jurisdic:tion, and secondly, that the person or authority to whom the High Court is empowered to issue 'such writs must be within thoRe 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 boen recently re, affirmed by this Court in Lt. Col. Khajoor Singh v. Union of India. (')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, t.Jie High Court will have no power to.grant a writ in this • case.

Learned counsel for the appJllant however relies on the decision in /Jfohd.Nooh's case(') where it was held that it was not correct to sav that an order of dismiBSal passed on April 20, 1948, merged in the order in appeal therefrom p8i!8Cd in May

1949, and the two orders in turn merged in the order passed in revision on April 2:!, 1950, or that the original order of dismissal only beoaruo final on the pas8ing of the order in revision.· It was furthor held that tho order of dismissal was operative on its

1. [1953J s.c.a. 1144.

2. t1958J s.c.R. 595. s. [1961J 2 s.c.R. &28.

3 S.C.R.

own strength and therefore no relief under Art. 226 could be granted against the order of dismissal pas scd in 19~8 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. Nook's case(1) cannot apply in the circumstances of the present case. The question there was whetherthe 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 dismissalh1wing 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 pased 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 Constitu- tion would not be Op"n to attack under Art. 226 or the Constitution. We are of opinion that the facts iu Mohd. Nook's case(') were of a special kind and

(I) ll958J s.c.R. 595.

I96B

Mada• Gopal

Run(fta

•• Secretar,1 to l'M <Jouernment oJ Orils:-

Wanchoo J.

.\/!fia GopaJ

/lungi.

•• tiur11ary to llN Gooernmetd oJOrissa

912 SUPREME OOURT REPoRTs (1982] SOPP.

the reasoning in that case would not apply to the facts of the present case .

.Further, in A. Thau.gal Kunj11 J!u8aliu,. v. Jf .

Venkit; v; halam Potti ('), though this Court was considering a matter in which the quc:ition which is before us wiis not directly in issue, it had occasion to consider certain decisions of curtain High Courts which dealt with cases similar to the present case : (ece p. l2lil). In those decisions orders had been paesed by c<:rtain inforior authorities within the wrritorics subject to the juridiction of the High Courts concerned, but they had been taken in appeal before superior authorities which were loc11.ted out. side the territories subject to the jurisdiction of tho High Courts concerned. In those circumst1mces the High Courtll ha.d 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 casus on the ground that a wrjt against the inferior authority within the torritoriell could not l>e of any avail to the petitioners concerned in those cases and could give them no . relief for the orders of the superior authority outside the jurisdiction would. remain

outstanding and opcrativo af.(ainst them. 1'horefore, as no writs could be issued against the outside authorities, this Court was of the view that tho High Courts were right in dismis8ing the petitions, as any writ against the inferior e.uthority which is within the jurisdiction of the High Court, in vi"w

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 api>iJcation of the appellant for grant of the mining lease.

The ii ppella.nt being aggrieved by that order went in review to the Contra] Government under tho Rule8 and that review petition was dismissed so that in effect the Central

(!) [1955] 2 S.C.R. 1196,

3 S.d.R.

SOPREME COURT REPORTS 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 ha.ve 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 applica- . tion of the appellant for the .grant of the inining 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 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, sall be final''.

Clearly therefore r. 60 provides that where there is a review petition against the order passed in the first ihstance 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

M ad, n Gopal Rungta

y, Secrclay to ht G(; Vernment of Orissa

lYanchoo J.

Madat< Gopal

Rungld ... 8e'1'dcny lo lht Governmerct oj Orillo

woncAoo J.

9I4 SUPREME COUR'"i. REPORTS [1962] SUPP.

circumstances we are of opinion that the High Court was right in holding that it had no jLirisdiction to issue a writ under Art. 22() in the present c1isc as the final order in this ease was that of the ntral Governm<'nt which was not situate within the territories over which the High Court has jurisdiction.

Our attention in this connection was drawn to Shivji Nathubhai v. 'J'he l.:nion of India (1).

In that case a mining lease had been granted by the State Government to a particular person and them was a review petition against the grant of that mining lease. The order granting tlw mining lease was set aside on reviow without notice to thc person to whom the lease had been granted. In that connection a question arose whether tho person to whom the State Government had granted tho lea, e had any interest to enable him . to make an application under Art. 22ti. It was then pointed out liy this Court that under the Rules the order of tho State Government would be cfft>ctive a~ there was no requirement that it was not final until confirmation by the Central Govornmm1t.

That case however is of no assistance to the appellaut for where there is a review petition and the Central Government passes an order on such potitiou one wy or thn other it is the Central Government's order that prevails and the State Government's order must in those eircurustances merge in the order of tho C"ntral Government. The observations in that case on which the appellant relics were made in another

connection and can have no bearing on the question before us, where an order has been paBBed by the Central Government on review and it is that order which is made final by r. tiO and which stands in the way of the appellant. 'lhere is therefore no force in this appeal and it is hereby dismissed with costs.

Appeal dismissed.

(IJ [1960J 2 s.c.J.{. ns.