Patna High Court
Baijnath Sharma vs State Of Bihar on 7 October, 1958
Equivalent citations: AIR1959PAT243, AIR 1959 PATNA 243, ILR 38 PAT 271
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Kanhaiya Singh, J.
1. This is an application under Article 226 of the Constitution for an appropriate writ. The circumstances are these. The petitioner, who has been granted a certificate of approval under Section 6 of the Mineral Concession Rules, 1949, made an application to the State of Bihar for grant of mining lease for mica and beryl in respect of 371 acres comprised in survey plots Nos. 1 and 3 situate in village Dumri Tola in the district of Monghyr. By their order dated 29th October, 1956, the State Government allowed the prayer of the petitioner for a lease out only in respect of an area of 352,03 acres.
On "29th October, 1956, they wrote a letter to the Collector of Monghyr communicating to him that they have decided to grant a mining lease for mica and beryl to the petitioner in respect of 352.03 acres and asked him to demarcate the ares and deliver possession to the petitioner on his giving an undertaking to the effect that he would execute the lease in the standard form approved by the Government vide Annexure A). Under the orders of the Mining Officer, Deoghar, datert 3rd December. 1956, the petitioner deposited Rs. 500 on 4-12-1956, on account of the cost of demarcation and also gave a written undertaking to execute the lease in the form approved by the Government (vide Annexures B and E). Thereupon, the Mines Surveyor of the Government of Bihar demarcated the area and delivered possession to the petitioner on 7-12-1956. Thereafter, the petitioner started prospecting the mining work in the demised area. On his application and after confirmation by the Collector the Mica Controller endorsed the area on his license. On 26-3-1957 for certain undisclosed reasons the Mining Officer. Deoghar directed a fresh demarcation or the area leased out to the petitioner to which the latter objected by his letter dated 2-4-1957.
On 24-8-1957, the petitioner, however, received a letter from the Mining Officer, Deoghar, dated 14-8-1957, intimating that the State Government had withdrawn their order dated 29-8-1956, and directing him to submit consolidated return of mica and beryl extracted from the area and to deposit royalty by the end of August, 1957, at the latest. The opposite party, namely, the State of Bihar, the Mining Officer, Government of Bihar, Deoghar, and the Chief Mining Officer, Government of Bihar, want, it is alleged, to oust the petitioner from his lawful possession of the leased area.
The case of the petitioner is that the opposite party are bound in law to carry out their obligations under the Mineral Concession Rules 1949, to execute a formal document of lease and to issue the same to him and that their contemplated action is illegal and in violation of his fundamental right to hold the properly. On these allegations he claimed a writ of mandamus or an appropriate direction commanding the opposite party to respect their order dated 29-40-1956, and execute a lease in his favour in respect of the demised area, as provided in the Mineral Concession Rules and to restrain the opposite party from interfering with his possession.
2. By their affidavit the State of Bihar admitted that a tentative decision had been taken to grant a lease to the petitioner in respect of 352.03 acres and delivery of possession had also been given, but alleged that no final order sanctioning the grant of lease had been made, nor could it have been made in law without the concurrence of the Government in the Finance Department and without the prior approval of the Government of India.
They further alleged that immediately after obtaining possession the petitioner started mining operation in contravention of Section 6 of the Mines Act, 1952 without giving due notice to the Chief Inspector of Mines, the Director, Indian Bureau of Mines and the District Magistrate, Monghyr, and the Chief Mining Officer visited the area on 14-2-1957, and discovered that he had committed serious irregularities and also extended the operation beyond the demised area, and, therefore, the Government withdrew their order dated 29-10-1956. They asserted that the order was perfectly legal, and the petitioner had no right, and there was no question of infringement of his fundamental right.
3. During the pendency of this application Maharani Giriraj Kumari, Rajmata Sahiba of Gidhour, applied for and obtained order of this Court to intervene. The affidavit made on her behalf disclosed that the State of Bihar had already granted her a lease for mica and beryl in respect of 61.50 acres including 9.17 acres out of plot No. 1 included in the petitioner's proposed lease in May, 1955, and had also delivered possession to her after due demarcation.
She alleged that the approval of the Government of India for granting lease to the petitioner had not been obtained and that no lease in fact was made in favour of the petitioner. She complained that the petitioner mala fide claimed 9.17 acres leased to her out of plot. No. 1 as a part of his lease and sought a declaration that this area be held to be outside fie area proposed to be given to him in the lease.
4. Mr. Baldeva Sahay, appearing for the petitioner, contended that when once the State Government had reached a decision to grant a lease to the petitioner, and. pursuant to that decision, had also delivered possession to him, they had no right to revoke that order and disturb his possession. His further contention is that the petitioner was entitled to call upon the State Government to fulfil their obligations under the Mineral Concession Rules, 1949, by executing the necessary lease. I am unable to accede to this argument. The Mineral Concession Rules lay down how, to whom and on what conditions a mining lease would be granted. By Rule 29 of the said Rules, certain restrictions on grant of mining leases have been imposed. It provides as follows:
26(1) "No mining lease shall be granted to any person unless he holds a certificate of approval from the State Government concerned or is covered by Rule 12....No mining lease shall be granted to a person who applies under Rule 61, unless he produces before the State Government an income-tax clearance certificate from the Income-tax Officer of the District where he resides and carries on business.
* * * * * (3) No mining lease for any mineral specified in Schedule IV shall be granted except with the prior approval of the Central Government".
One of the minerals specified in Schedule IV is beryl. It will be recalled that the petitioner wanted a mining lease for mica and beryl. The first condition is, no doubt, fulfilled; he holds a certificate of approval from the State Government. The other condition, which is vital has not been complied with. The approval of the Central Government for granting mining lease for beryl to the petitioner has not been obtained. Both the State Government and the inter-venor alleged that the proposed lease in favour of the petitioner was illegal, because it had not been approved by the Central Government.
The petitioner nowhere alleged, nor is it his case, that the order of the State Government to grant him a lease was made with the prior concurrence of the Central Government. His application is wholly silent on this point. Mr. Sahay contended that there was no categorical denial of the approval of the Central Government in the affidavit of the State Government. This is not quite correct. Paragraph 4 of the show-cause petition of the State Government clearly shows that the approval of the Central Government had not been obtained and that there was no completed lease with the petitioner.
At any rate, there is no positive averment on behalf of the petitioner that the approval of the Central Government had been obtained. On the contrary, even the order of the State Government, dated 29-10-1956, on which the case of the petitioner is rested, was not a final order. It makes it perfectly clear that no final sanction to grant the lease had yet been accorded by the State Government. It shows that the decision which the State Government had taken was simply tentative, and the letter stated that "necessary sanctioning order will follow shortly".
The sanctioning order stated in that letter was never made. It is thus manifest that the Central Government had not accorded approval to the lease in favour of the petitioner, that the decision of the State Government to grant him lease was inchoate, made in anticipation of the sanction of the Central Government, and, consequently, no legal lease was created by the aforesaid order of the State Government and no valid tide passed to the petitioner. Mr. Sahay made too much of the fact that the petitioner had been delivered possession.
This argument overlooks the basic fact that the entire stand of the petitioner was illegal. The minerals specified in Sch. IV are minerals of great national importance, and the law, therefore, vests in the Central Government the power to lease out or not a particular mineral, having regard to the ultimate interests of the nation. The State Governments have no authority to barter away the property of vital importance to the nation by any unilateral Act.
The order of the State Government dated 29-10-1956, was ultra vires, illegal and void, and therefore possession given to the petitioner pursuant to the said order was illegal and ineffectual. The petitioner complains that the subsequent withdrawal of the said order by the State Government by their letter dated 14-8-1957, was violative of the principles of natural justice as he was not afforded an opportunity to be heard.
When the initial order to make the lease and the consequent delivery of possession were in contravention of the mandatory provisions of law, of which the petitioner had full knowledge, it was not imperative for the State Government to hear him before they cancelled what was patently without authority and wholly illegal. It is obvious enough that the order of 29-10-1956, cannot be maintained in law. A writ of mandamus is meant to promote and uphold justice and not to maintain what is illegal and unjust. In these circumstances, the petitioner has no locus standi to maintain this petition.
5. Mr. Sahay referred to two decisions of the Supreme Court in the cases of Virendra Singh v. State of Uttar Pradesh, 1954 SCA 686: (AIR 1954 SC 447) and Wazir Chand v. State of Himachal Pradesh, 1954 SCA 1257: (AIR 1954 SC 415): None of these cases supports his contention. In the case Virendra Singh, the Ruler of Sarila and the Ruler of Charkhari made permanent grants of certain villages to the petitioners on 5-1-1948 and 28-1-1948 just after they acceded to the Dominion of India which was created in 1947 by the Indian Independence Act of 1947 and before their final and full accession with effect from 1-1-1950.
On 25-1-1950 the villages which were the subject-matter of the grants to Virendra Singh and others were absorbed into the United Provinces (Now Uttar Pradesh) under the provisions of the Government of India Act. 1935. On 26-1-1950, the Constitution of India came into force. On 29-8-1952, the Uttar Pradesh Government, in consultation with the Government of India, revoked the grants of the petitioners, Virendra Singh and others.
The petitioners thereafter filed the said petition under Article 32 of the Constitution of India before the Supreme Court for an appropriate writ to restore the villages to them. It is quite obvious that on the date of the grants the Rulers had absolute rights of disposition and the grants passed an absolute and indefeasible title to the grantees. On the date of the resumption there was no law authorising tho Uttar Pradesh Government to resume the grants and recover khas possession.
There was therefore an infringement of their fundamental right to property. The State Government tried to defend their action on the ground that it was an act of the State. Their Lordships of the Supreme Court overruled this objection and have held that it is impossible for a sovereign to exercise an act of State against its own subjects. They accordingly upheld the petitioners" claim and observed as follows:
"It was not denied that if the present action of the State cannot be defended as an act of State it cannot be saved under any provision of law. Whether the State would have the right to set aside these grants in the ordinary Courts of the land, or whether it can deprive the petitioners of these properties by legislative process, is a matter on which we express no opinion. It is enough to say that its present action cannot be defended. Article 31(1) of the Constitution is attracted as also Article 19(f). The petitioners are accordingly entitled to a writ under Article 32(2). A writ will accordingly issue restraining the State of Uttar Pradesh from giving effect to the orders complained of and directing it to restore possession to the petitioners if possession has been taken."
It will be seen that the facts are wholly different and the case is clearly distinguishable. There the petitioners had acquired absolute title to the villages concerned. In the instant case the petitioners have no vestige of title. The ratio of that decision does not, therefore, govern the present case.
6. In the second case, namely, the case of Wazir Chand, on the complaint of Prabhu Dayal made to the police at Jammu on 3-4-1951, alleging commission of an offence of embezzlement under Section 496 of the Penal Code, the police officers of the Jammu and Kashmir State took up investigation and in course of the investigation seized certain moveables in possession of Wazir Chand at Chamba in Himachal Pradesh in the Union of India.
Wazir Chand made an application under Art 226 of the Constitution of India to the Judicial Commissioner of the State of Himachal Pradesh praying for issue of one or more writs in the nature of mandamus directing the respondents to order the release of the seized goods and to refrain from passing any orders about the extradition of these goods. This application was rejected. There was an appeal to the Supreme Court. The Supreme Court has held that the Jammu and Kashmir police had no jurisdiction or authority whatsoever to carry out investigation of an offence committed in Jammu and Kashmir in Himachal territory without the authority of any law and the seizure of the goods was illegal.
Possession of moveables itself is good evidence of title and Wazir Chand was certainly entitled to get back the goods illegally seized from his possession. In these circumstances their Lordships of the Supreme Court ordered an appropriate writ to issue directing the restoration to the petitioner of the goods seized by the police. This case is also distinguishable. These two cases, therefore, do not support the contention raised by Mr. Sahay, and it must be overruled.
7. Then, there is another ground of objection to the application. So far I have considered the question independently of the claim laid by Maharani Giriraj Kumari of Gidhour. The petitioner has not supplied a map of the area over which he holds possession . There is no specification of it. The said Manarani claims 9,17 acres out of plot No. 1 which is included also in the proposed lease of the petitioner. The State Government granted lease to the Maharani in 1955, and this lease was made before the amendment of Rule 26 of the Mineral Concession Rules which requires the prior approval of the Central Government.
Therefore, at that time the State Government had full authority to make the lease and the title of the Maharani was absolute and indefeasible. Her allegation is that the petitioner was not entitled to extend the mining operation over her area. It is true that the petitioner's claim has to be decided independent of the claim made by tho Maharani. Nevertheless, her claim underlines the difficulty in granting an appropriate writ to the petitioner in a case where conflicting interests have intervened.
Further, the Central Government, which is not a party to the present application, is vitally interested in the mines and minerals of the Union of India, and the final authority to grant leases rests with the Central Government. It is thus obvious; that there cannot be effective adjudication of the petitioner's claim in disregard of the claim of the Maharani and in the absence of the Central Government.
When there are different conflicting interests and when the necessary parties are not on the record and the materials are not adequate for a complete adjudication of the points involved without going into evidence, the Court will not exercise its extraordinary jurisdiction in favour of the petitioner which will put the other claimants in a disadvantageous position. "The grant of an order of mandamus is, as a general lute, a matter for the discretion of the Court. It is not an order granted as of right and it is not issued as a matter of course" --Halsbury's Laws of England, Simonds Edition, Vol. 11, pages 85-86. Therefore, where there are special circumstances of the case and it is difficult to square up the equities between the different claimants, the Court may refuse to" grant an order of mandamus, I think, in such a case, the Court should not exercise its extraordinary jurisdiction. Thus, judged from any point of view, the rule issued in tin's case ought to be discharged.
8. In the result, the application is dismissed with costs. Hearing fee Rs. 200/-.
V. Ramaswami, C.J.
9. I agree.