1961 JTR(SC) 238
1962 AIR(SC) 670 ; 1961 SCD 964 ; 1961 2 SCJ 553 ; 1962 2 SCR 733 ; 1962 KHC 508
SUPREME COURT OF INDIA
J.C.Shah : J.L.Kapur : K.Subba Rao : M.Hidayatullah : Raghubar Dayal
Shriram Jhunjhunwala
Versus
State Of Bombay
Case No. : 236 of 1959
Date of Decision : 5/4/61
Advocates Appeared: Chatterjee P.K. : Ghate G.J. : Lal Naunit : Maheshwari B.P. : Sanyal H.N. : Sastri A.V.Viswanatha : Sen T.M.
A High Court cannot quash an order of the Union government if it lacks territorial jurisdiction over it. When a State government merely implements a direction from the Union government, the Union government's order is the final order and the primary subject of challenge.
Act
Referred
:CONSTITUTION OF INDIA
: Art.226
(A) Constitution of India - Article 226 - Mineral Concession Rules, 1949 - Rule 57 - Writ of certiorari - Jurisdiction of High Court to quash order of Union government - Where the High Court does not exercise territorial jurisdiction over the Union government, it cannot quash an order passed by the Union government. (Para 9)
(B) Administrative Law - Nature of orders - Where the State government grants a lease in accordance with the directions of the Union government following a review, the State government merely effectuates the order of the Union government - The order of the Union government remains the final order and cannot be challenged as an order of the State government for the purpose of jurisdiction. (Para 12)
Facts of the case:
An applicant was granted a prospecting license for a specific area of manganese ore. Another party applied for a mining lease for a portion of that area and sought a review before the Union government. The Union government directed the State government to restrict the first applicant's license and subsequently directed the grant of the mining lease for the disputed area to the second party. The first applicant filed a petition under Article 226 in the High Court to quash the Union government's order and seek a direction for the grant of the lease. The High Court dismissed the petition on the grounds of lack of territorial jurisdiction over the Union government.
Findings of Court:
The High Court could not quash the order of the Union government as it did not exercise territorial jurisdiction over it. Furthermore, the State government's action in granting the lease was merely the execution of the Union government's final order.
Issues: Whether the High Court had the jurisdiction to quash an order passed by the Union government and whether the State government's act of implementing such an order constituted an independent order subject to the High Court's jurisdiction.
Ratio Decidendi: The court held that a High Court cannot issue a writ of certiorari to quash an order of the Union government if it lacks territorial jurisdiction over the Union government. When a State government acts under the direction of the Union government to effectuate a decision, the Union government's order is the final and effective order.
Result: Appeal dismissed with costs.
(B) Administrative Law - Nature of orders - Where the State government grants a lease in accordance with the directions of the Union government following a review, the State government merely effectuates the order of the Union government - The order of the Union government remains the final order and cannot be challenged as an order of the State government for the purpose of jurisdiction. (Para 12)
Facts of the case:
An applicant was granted a prospecting license for a specific area of manganese ore. Another party applied for a mining lease for a portion of that area and sought a review before the Union government. The Union government directed the State government to restrict the first applicant's license and subsequently directed the grant of the mining lease for the disputed area to the second party. The first applicant filed a petition under Article 226 in the High Court to quash the Union government's order and seek a direction for the grant of the lease. The High Court dismissed the petition on the grounds of lack of territorial jurisdiction over the Union government.
Findings of Court:
The High Court could not quash the order of the Union government as it did not exercise territorial jurisdiction over it. Furthermore, the State government's action in granting the lease was merely the execution of the Union government's final order.
Issues: Whether the High Court had the jurisdiction to quash an order passed by the Union government and whether the State government's act of implementing such an order constituted an independent order subject to the High Court's jurisdiction.
Ratio Decidendi: The court held that a High Court cannot issue a writ of certiorari to quash an order of the Union government if it lacks territorial jurisdiction over the Union government. When a State government acts under the direction of the Union government to effectuate a decision, the Union government's order is the final and effective order.
Result: Appeal dismissed with costs.
A.V.VISHWANATHA SASTRI, B.P.MAHESHVARI, G.J.GUPTA, H.N.SANYAL, NAUNIT LAL, P.K.CHATTERJI, T.M.SEN
RAGHUBAR DAYAL, J.
(1) THIS appeal, by special leave, is against the order of the High court of Judicature at Nagpur, dismissing the petition of the appellant under Art. 226 of the Constitution.
(2) ON 9/08/1950, the appellant applied to the State government, Madhya Pradesh, for the grant of a prospecting licence for manganese ore over an area of 83-1 8 acres, comprising khasra No. 1 of mouza Seoni Bhondki. The State government granted the prospecting licence for this area on 18/06/1951 and intimated that the prospecting licence form which was pending approval by the Union government, would be executed in due course.
(3) ON 21/04/1951, respondent No. 3 applied for the grant of mining lease over 32 acres out of the aforesaid area of 83- 18 acres. On 20/10/1951, the State government informed him that area bad been already granted to the appellant under prospecting licence, and it was not available to him.
(4) ON 26/11/1951, respondent No. 3 applied for review to the Union government under r. 57 of the Mineral Concession Rules, 1949.
(5) ON 5/09/1952, the Union government wrote to the State Government that its order regarding the grant of prospecting licence to the appellant over an area of 83-18 acres should be modified to the extent that the area granted under the prospecting licence be restricted to the virgin area of 51.18 acres, as the area of 32 acres had been previously held under a mining lease by Messrs Akbar Ali Munwar Ali and had not by then been thrown open for regrant. It was further directed by the Union government, that area of 32 acres be thrown open for re-grant. In consequence of this direction by the Union government, the State government modified its order dated 18/06/1951, granting the prospecting licence to the appellant and restricted that licence to the virgin area of 51-18 acres only.
(6) THEREAFTER, some time in April 1953, applications were invited for the grant of mining lease with respect to the area of 32 acres. The appellant submitted an application for the grant of the mining for 83-18 acres. The respondent No. 3 (lid not file any fresh application. On 30/04/1954, the government granted a mining lease for manganese ore over an area of 51.18 acres and did not grant the lease for the area of 32 acres, stating in its letter to the Deputy Commissioner that area had been granted to respondent No. 3 tinder mining lease, as directed by the Union government, under r. 57 of the Mineral Concession Rules.
(7) SOMETIME thereafter, on 17/05/1954, the appellant filed the petition under Art. 226 of the Constitution in the High court, praying for the quashing of the order of the Union government, respondent No. 2. Granting 32 acres of area in dispute to respondent No. 3, by the issue of a writ of certiorari and also for the issue of direction that the appellant was entitled to the mining lease in respect of that area.
(8) THE High court dismissed this petition, holding that in order to-give the relief prayed for it was essential that the order of the Union government quashed and, as the High court could not reach it, it would be incongruous to direct the State government to ignore the order of the Union government. It is against this order that this appeal has been filed.
(9) THIS appeal has no force. The prayer in the writ petition was for the quashing of the order of the Union government granting 32 acres of area in dispute, to respondent No. 3, by issue of a writ of certiorari and for the issue of a direction that the, applicant was entitled to a mining lease in respect of the said area of 32 acres. The order of the Union government could not be quashed by the High court of Bombay, as it did not exercise territorial jurisdiction over the Union government. The High court could not issue the directions prayed for even if it could issue such a direction till the order of the Union government granting the mining lease of 32 acres to respondent No. 3 was set aside.
(10) IN this view of the matter, it is unnecessary to consider the points urged for the appellant that the order of the Union government was not an order within its jurisdiction inasmuch as it passed it without issuing notice to the appellant or affording him an opportunity to be heard on the review application filed by respondent No. 3. The question, in this form, was not raised before the High court and if it had been raised, it would not have been within the jurisdiction of the High court to interfere with it.
(11) IT has also been urged that the Union government had no jurisdiction to pass the order dated 7/04/1954, under r. 57 of the Rules when, in fact, no application forreview by respondent No. 3 was pending before it, as thereview application filed by respondent No. 3/11/1951, had been disposed of by the Union government on 5/09/1952. The review application, however, Was not in fact finally disposed of by the letter from the Union government to the State government, dated 5/09/1952. That letter asked the State government to reduce the area of the prospecting licence granted to the appellant to 51.18 acres and to throw open for re-grant the remaining area of 32 acres. The letter convened no order of the Union government about the way in which the Union government was disposing of the review application. It is clear from the several letters on record that the Union government never treated the review proceedings before it to have been disposed of. Respondent No. 3 was informed by those letters that the matter was under consideration. It is therefore not correct to say that there was no review application pending with the Union government on 7/04/1954, when it passed the order cancelling the orders of the State government dated 20/10/1951, and directing the State government to grant a mining lease for manganese ore over an area of 32 acres to respondent No. 3, provided he was otherwise eligible.
(12) THE State government, as urged for the appellant, has the power, under the Rules, to grant the mining lease. But its granting such a lease is subject to the orders on a review by the Union government. Its order is final, subject to the order of the Union government. When the Union government directed the grant of the mining lease for an area of 32 acres to respondent No. 3, the State government had to order such grant, in accordance with the directions of the Union government. In fact, at that stage, the State government only effectuates the order of the Union government. It carries out that order which remains the final order. The contention that the effective order is ultimately of the State government and therefore can be quashed by the High court is not open to the appellant.
(13) THE appeal has therefore no force and is hereby dismissed with costs.