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Dharamchand JaIn Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberO.J.C. Nos. 1240 of 1976 and 460 of 1977
Judge
Reported inAIR1982Ori163
ActsConstitution of India - Article 226; Mineral Concession Rules, 1960 - Rules 54 and 55
AppellantDharamchand Jain
RespondentState of Orissa and ors.
Appellant AdvocateR. Mohanty, Adv.
Respondent AdvocateGovt. Adv. and ;Standing Counsel (Central)
Cases ReferredDharam Chand v. State of Bihar.
Excerpt:
.....and when the stale government failed to take steps, petitioner moved this court by filing a writ application on 29-11-1976, where the relief claimed is for a mandamus to the state government to implement the revisional order of the central government. the conduct of the state in waiting for more than six years to move this court and more than six months from the date of knowledge of the stand taken by the central government as noticed above is clearly indicative of the fact that diligent steps were not taken by the state in moving this court and it would not at all be appropriate to entertain the writ application more than six years after the order was passed for the relief of cer-tiorari. ..it was clearly not open to the state government to decline to carry out the orders of the..........and when the stale government failed to take steps, petitioner moved this court by filing a writ application on 29-11-1976, where the relief claimed is for a mandamus to the state government to implement the revisional order of the central government. this application has been registered as o.j.c. no. 1240 of 1976. about seven months after the presentation of the petitioner's application, on behalf of the state government an application under article 226 of the constitution has been filed challenging the revisional direction of the central government made on 5th june, 1971 and asking for quashing thereof. the said writ application has been registered as o.j.c. no. 460 of 1977. the position, therefore, is, while petitioner of o.j.c. no. 1240 of 1976 wants implementation of the.....
Judgment:

R.N. Misra, C.J.

1. On 15th of July, 1969, petitioner in O. J. C. No. 1240 of 1976 applied to the State Government for grant of a mining lease of iron ore over an area of 251 acres in village Dalpahara in Champua sub-division of the district of Keonjhar. As the said application was not disposed of within twelve months from the date of its receipt, petitioner invoked the revisional jurisdiction of the Central Government under the Mineral Concession Rules against the deemed rejection. On 5th Jan., 1971, the State Government forwarded its comments on the revision application and it was pointed out that the area for which the petitioner applied lay within the leasehold area of M/s. M. A. Tulloch & Co. for manganese ore. On 15th Feb., 1971, petitioner sent his counter-comments and stated that M/s. M. A. Tulloch & Company had confirmed that they had taken lease for manganese ore only and had no objection if the area applied for by the petitioner for iron ore was given to the petitioner. On 5th June, 1971, the Central Government in exercise of powers vested under Rules 54 and 55 of the Mineral Concession Rules directed the State Government to grant the mining lease for iron ore in favour of the petitioner and specified in their order that M/s. M. A. Tulloch & Co. had declared that they had no interest for taking the lease of iron ore and had no objection to the grant of lease in favour of the petitioner. In the absence of any further challenge to the direction of the Central Government, it became final. On 12th June, 1971, on the basis of the Central Government's direction, petitioner moved the State Government for expediting grant of the mining lease. On 14th Oct., 1971, the State Government without complying with the order of the Central Government moved for reconsideration of the matter. On 27th Dec., 1971, the Central Government wrote to the petitioner to offer his comments on the basis of the subsequent letter of the State Government. Petitioner sent his comments on the 24th Jan., 1972 and pointed out that the revisional order was final and could not be reopened. Emphasis was laid by the petitioner on the feature that M/s. M. A. Tulloch & Co. had no objection and, therefore, the request of the State Government for reconsideration was without any foundation. Petitioner also prayed for a further direction to the State Government to implement the revisional direction. On 12th of Feb., 1974, the Central Government indicated that it had become functus officio after making the revisional order of 5th June, 1971. A copy of the letter (Annexure 10) reads thus:--

'I am directed to refer to your letter... ...... on the above subject and while inviting your attention to this Ministry's letter of even number dt. 1-5-1973 and to say that the Central Government has become functus officio after the issue of final order. You are, therefore, requested to pursue the matter with the State Government or alternatively seek relief from an appropriate court of law.' Petitioner moved the State Government on several occasions for complying with the revisional direction and when the Stale Government failed to take steps, petitioner moved this Court by filing a writ application on 29-11-1976, where the relief claimed is for a mandamus to the State Government to implement the revisional order of the Central Government. This application has been registered as O.J.C. No. 1240 of 1976.

About seven months after the presentation of the petitioner's application, on behalf of the State Government an application under Article 226 of the Constitution has been filed challenging the revisional direction of the Central Government made on 5th June, 1971 and asking for quashing thereof. The said writ application has been registered as O.J.C. No. 460 of 1977. The position, therefore, is, while petitioner of O.J.C. No. 1240 of 1976 wants implementation of the Central Government's direction, the State of Orissa who is petitioner in the connected matter, has asked for quashing of the revisional direction itself. Since both the cases involve common questions of fact and law at the instance of the counsel for parties both the applications were heard at a time and this common judgment shall cover both the cases.

2. We shall first deal with the writ application filed by the State (O.J.C. No. 460 of 1977). Serious objection has been raised by opposite party No. 2 to the maintainability of the writ application on the ground that the application has been made more than six years after the impugned order and as such a belated application should not be entertained. With a view to explaining away the delay, in para. 18 of the writ application it has been pleaded that the State Government pointed out to the Central Government by its letter No. 9182 dated 14-10-71 for reconsideration of the matter. The Central Government asked for the comments of opposite party No. 2 and the comments given by the latter were communicated to the State Government on 1-5-1972. The State Government furnished further comments on 16-2-73 but no further communication was received by the State Government. It has been further pleaded on behalf of the State that in these circumstances the order dated 5-6-1971 was not taken as the final order. In the same paragraph it was further pleaded that the communication sent by the Central Government to opposite party No. 2 was not known to the State as a copy thereof had not been received. On 18-12-76 notice in O.J.C. No. 1240 of 1976 filed by opposite party No. 2 was received by the State and therefrom the order of the Central Government was known.

The Central Government has filed a counter-affidavit. With reference to paragraph 18 of the writ application, in para. 14 of the counter-affidavit it has been pleaded :--

'...... I submit that the correspondence with the petitioner and opposite party No. 2 is admitted. The petitioner was also informed by letter dated 1-5-73 that once the Central Government passes an order under Rule 55 of the Mineral Concession Rules, 1960, the Central Government has no further jurisdiction to revise their order passed on the revision application.' There is no denial on behalf of the State to this assertion in the counter-affidavit of the Central Government. Thus by May, 1973, the Central Government had communicated to the State that it had no jurisdiction to entertain any further reference for clarification or alteration from the State Government. Admittedly, there is no power of review vested in the Central Government. Once final orders are passed, the Central Government must have become functus officio. Nothing has been shown to us which would vest jurisdiction in the Central Government to entertain an application for reconsideration of its decision. Over and above these aspects, conceding that the State had notice of the final order only in December, 1976, there is absolutely no justification why the State should have taken time till 24th June, 1977 to move the Court. As it is, by Dec., 1976, more than 5 1/2 years had been lost and, therefore, very prompt action should have been taken to move this Court in case the State wanted to challenge the Central Government's direction of June, 1971. As had been pointed out by Prof. De Smith in his famous book 'Judicial Review of Administrative Action', the right to certiorari is lost by acquiescence or implied waiver. The conduct of the State in waiting for more than six years to move this Court and more than six months from the date of knowledge of the stand taken by the Central Government as noticed above is clearly indicative of the fact that diligent steps were not taken by the State in moving this Court and it would not at all be appropriate to entertain the writ application more than six years after the order was passed for the relief of cer-tiorari. We, therefore, decline to entertain the application of the State on the ground of unusual and unexplained delay. We may point out that the direction of the Central Government was within the ambit of the Mines and Minerals (Regulation & Development) Act and the Mineral Concession Rules, Even if the submission of the State is accepted that the direction was an erroneous one, it did not affect the jurisdiction of the Central Government as the duly constituted Tribunal to make the order. An erroneous order is as much binding as a valid one on those who are bound by the order. It has been held by the Supreme Court in Dharam Chand v. State of Bihar. AIR 1976 SC 1433 :-- (Paras 2 & 5)

'We might mention here that under Rule 54 of the Mineral Concession Rules, 1960, the Central Government acts as a revisional tribunal against any order passed by the State Government and has obviously, therefore, the same powers as the State Government.....

In these circumstances, therefore, when the Central Government allowed the revision application and directed the State Government to grant the licence to the appellant, the order must be deemed to be an order passed by the Central Government granting the prayer of the appellant for issue of the mining lease... It was clearly not open to the State Government to decline to carry out the orders of the Central Government on this ground, particularly because the Central Government was a tribunal superior to the State Government. If a ground came into existence subsequent to the making of the order of the Central Government which warranted a reconsideration of the order of the Central Government as indicated above (Here, the State Government wanted a review by pointing out mistakes in the Central Government's order), the State Govern-could have brought this ground to the notice of the Central Government. However, one thing is manifestly clear that the State Government could not have refused to implement the order of the Central Government unless the Central Government itself chose to revise it either on a reference by the State Government or suo motu. In fact, to take the view that the State Government could decline to carry out the order of the Central Government on some ground which it thinks proper would be subversive of judicial discipline. ..... The earlier order of the Central Government, stood unvaried and unvacated and the State Government was bound to implement it..... '

The State Government were bound by the superior Tribunal's direction and, as a quasi-judicial authority under the Act, it was not entitled to file a writ application to challenge the order of the superior Tribunal. We are, therefore, of the view that the application filed by the State has got to be dismissed both on the ground of delay and laches as also on the ground that at its instance the writ application challenging the superior Tribunal's order would not be maintainable.

3. Coming to the other writ application (O. J. C, No. 1240 of 1976) where the applicant for the mining lease is the petitioner, the relief claimed is enforcement of the Central Government's order. We have already extracted what the Supreme Court said in Dharamchand's case (AIR 1976 SC 1433), that is, the Central Government had the same power as the State Government in the matter of grant of the mining lease. The direction of the Central Government was to grant the lease and that direction has become final. Under the scheme of the Act and the Rules, the direction of the Central Government has got to be given effect to and it is for the State Government now to implement the direction by making the grant. Judicial discipline, therefore, warrants that the State Government must come forward to execute the lease deed in terms of the direction of the Central Government. We accordingly allow the prayer of the applicant for the mining lease, allow O. J. C. No. 1240 of 1976 and direct that a writ of mandamus shall issue to the State Government for giving effect to the order of the Central Government dated 5-6-1971 within two monlhs from the date of service of the writ.

4. O. J. C. No. 460 of 1977 is dismissed while O. J. C. No. 1240 of 1976 is allowed. The applicant for the mining lease shall be entitled to consolidated costs of Rs. 250/-.

Behera, J.

5. I agree with my Lord the Chief Justice.


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