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SerajuddIn and Co. Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 240 of 1971
Judge
Reported inAIR1974Cal296,78CWN61
ActsConstitution of India - Article 226; ;Mines and Minerals (Regulation and Development) Act, 1948 - Section 13; ;Mineral Concession Rules, 1960 - Rule 54; ;Mineral Concession (Amendment) Rules, 1949 - Rule 28-A
AppellantSerajuddIn and Co.
RespondentState of Orissa and ors.
Appellant AdvocateR.C. Deb, ;Dipankar Gupta, ;P.K. Sen and ;Sukumar Basu, Advs.
Respondent AdvocateN.C. Chakraborti and ;Paritosh Kumar Mukherjee, Advs.
DispositionAppeal allowed
Cases ReferredSouth Kheri v. Ram Sanehi Singh
Excerpt:
- b.c. mitra, j.1. on december 3, 1949. the first respondent invited applications for grant of a mining lease under the mineral concession rules, 1949 (hereafter referred to as the 1949 rules). these rules were framed by the central government in exercise of powers under section 5 of the mines and minerals (regulation and development) act, 1948 (hereafter referred to as the 1948 act). both the act and the rules were subsequently replaced by the mines and minerals (regulation and development) act, 1957 (hereafter referred to as the 1957 act) and the mineral concession rules, 1960 thereafter referred to as the 1960 rules).2. in answer to the invitation, the appellant applied for grant of a mining lease on december 6, 1949, for 93 and odd acres of land in village gurda, p. s. chamakpur,.....
Judgment:

B.C. Mitra, J.

1. On December 3, 1949. the first respondent invited applications for grant of a mining lease under the Mineral Concession Rules, 1949 (hereafter referred to as the 1949 Rules). These Rules were framed by the Central Government in exercise of powers under Section 5 of the Mines and Minerals (Regulation and Development) Act, 1948 (hereafter referred to as the 1948 Act). Both the Act and the Rules were subsequently replaced by the Mines and Minerals (Regulation and Development) Act, 1957 (hereafter referred to as the 1957 Act) and the Mineral Concession Rules, 1960 thereafter referred to as the 1960 Rules).

2. In answer to the invitation, the appellant applied for grant of a mining lease on December 6, 1949, for 93 and odd acres of land in Village Gurda, P. S. Chamakpur, District Keonjhar, Orissa. The appellant's application along with those of others was considered by the first respondent and by an order dated May 16. 1955, the first respondent directed grant of a mining lease in respect of the said area in favour of the appellant. The lease, however, was to be subject to such condition as the first respondent light incorporate in the deed of lease.

3. Pursuant to the decision of the first respondent to grant the lease to the appellant, the first respondent offered to make ever possession of the land to the appellant for commencing mining operations, on the basis of yearly licence, upon certain terms and conditions. The appellant accepted the offer and thereupon on July 27, 1955, the first respondent directed possession of the land to be made over to the appellant with permission to carry on mining operations for a year, with an assurance to renew the permission from year 1o year, until finalisation of the lease. Possession was delivered to the appellant on August 13, 1955.

4. For 3 years thereafter, the first respondent took no steps for execution of a mining lease in accordance with the 1948 Rules in spite of representations made fromtime to time by the appellant for that purpose. On July 26, 1958, the first respondent sent a draft lease to the appellant for executing a formal lease. On August 22, 1958, the draft lease with suggested modifications was returned by the appellant to the Collector of Keonjhar for final approval. A date for execution of the lease was fixed by the Collector, but this date was extended more than once at the instance of the appellant.

5. On October 25. 1958, the appellant made a representation to the respondent's suggestion that an additional clause be incorporated in the lease to safeguard certain rights of the lessee created by the amended provisions of Rule 41 (I) (ii) of the 1949 Rules. Thereafter somehow or other the matter appears to have been lost sight of. The appellant, however, continued to make representations and send reminders either to the first respondent, or to the Collector, requesting a decision on the suggestions by the appellant for incorporation of a new clause in conformity with Rule 41 (1) (ii) of the 1949 Rules. While this was going on, a dispute arose over payment of royalties by the appellant. The respondents alleged that the appellant was heavily in arrears in payment of royalty and the appellant denied the liabi-lity. On April 4, 1962, the first respondent purported to revoke the grant originally made on May 16. 1955 on the ground that the appellant failed to execute the lease though called upon to do so. According to the appellant, no such decision was taken by the first respondent for revocation of the grant and at any rate the order of revocation was never communicated to the appellant and for that reason the order of revocation itself was invalid.

6. On April 11, 1962. the Collector wrote a letter to the appellant in which he stated that the appellant was allowed to execute the mining lease which he failed to do. and for that reason the Government had revoked the order by which the mining lease was granted to the appellant. The appellant was asked to stop working of the mine at-once on receipt of the letter and to quit possession forthwith. The appellant preferred a revision petition under Rule 54 of the 1960 Rules, which had come into force in the meantime. This revision petition was rejected by the Centra] Government, who purported lo affirm the original order of revocation made by the Slate Government. The order of the Central Government was communicated to the appellant by a memorandum dated August 6, 1965. In the meantime, and while the revision petilion was pending before the Central Government, and after the stop-work order was communicated to the appellant on April 11, 1962, the Collector by his letter of April 28, 1962, informed the appellant that it was allowed to resume mining operations in the land until further orders. On the authority of this communication the appellant continued its mining operations as beforeuntil September 22, 1967, when he was served with another order. In this order the Secretary to the first respondent alleged that the appellant was allowed to execute a mining lease of manganese ore, that it failed to execute the lease till April, 1962, that the order of grant was revoked by the first respondent, and the appellant was directed to stop work, that the appellant filed a revision petition before the Central Government which was rejected, that the appellant was in unauthorised possession of the land and was working the mines without a valid lease and, therefore, it was directed to stop work and quit possession within 30 days from the date of receipt of the order failing which action would he taken against it. On receipt of this order the appellant moved this Court under Article 226 of the Constitution and obtained a Rule nisi. This Rule was discharged by a judgment and order dated February 26. 1971 against which this appeal has been preferred.

7. The trial Court noticed that the only subject-matter of challenge in the writ petition was the said order of September 22, 1967, and that the order of revocation made on April 4, 1962 by the first respondent was not challenged, nor was there any challenge to the order made by the Central Government in the revision application of the appellant, which was communicated to the appellant by the memorandum of August 6, 1965.

8. A good deal of criticism was directed by Mr. R. C. Deb, counsel for appellant, against the order under appeal on the ground that the learned Judge failed to hold that the purported order of revocation of April 4. 1962, was invalid as it was never communicated to the appellant, nor was it disclosed at any stage before the writ petition was filed, and secondly on the ground that the order made by the Central Government on the appellant's revision petition was of no effect and not binding as even assuming that it was directed against the order of revocation purported to have been made on April 4, 1962, that order itself was a nullity. The contention of counsel for the appellant was that it was not necessary for the appellant to challenge the validity and legality of the order of revocation, which according to the appellant was not in existence and was invalid, not having been communicated to it. Therefore, the order made by the Central Government was itself of no effect as it purported to deal with an order of the State Government which was a nullity.

9. Mr. Nani Coomar Chakrabarty appearing for the respondents on the other hand contended that it was not open to the appellant to challenge the order of September 22, 1967, as that was merely a consequential order. This order was, he argued, a mere notice to quit in order to give effect to the order of revocation made by the first respondent, and the order in revision made by the Central Government. It was argued thateven if relief was granted to the appellant in this writ petition, such relief would be infruc-tuous and in any event would be no remedy of his grievance, as the order of revocation and the order made in revision would still remain, outstanding. If those two orders remained outstanding, it was further argued, the appellant would have no right to remain in possession of the mine and to operate it. The appellant's rights, it was also argued, were terminated by the order of revocation and were finally extinguished by the order made in revision. Such rights could not be revived and restored to the appellant, it was also argued, by merely striking down the order of September 22, 1967, directing the appellant to stop work in the mine and to quit possession.

10. It seems to us that although there is good deal of force in the contention of counsel for the respondents, it cannot be said that the appellant is not entitled to any remedy in its writ petition as it had not challenged the order of revocation purported to have been made on April 4, 1962, and the order made by the Central Government in revision. It is true that those two orders cannot be touched by this Court in the writ petition as there was no challenge to the same. It is also true that they would remain outstanding even if the Rule was made absolute. But it ought not to be overlooked that in granting relief to the appellant on the prayers in the petition as they stand, the Court can make any order in order to give relief to the appellant on its writ petition and in doing so an order may be made directing the respondents not to disturb the appellant's possession, as the order is to stop operations and quit possession. In aid of such a prayer it would be open to the Court to direct the respondents not to disturb the appellant's possession of the mine and not to prevent the appellant from operating the mine. Such an order would give to the appellant the relief which it sought in its writ petition even though the order of purported revocation and the order made in revision remained outstanding.

11. The arm of this Court in its writ jurisdiction is long enough to reach injustice wherever it might occur (See : [1965]57ITR349(SC) ). It would be open to this Court if it is satisfied that the appellant is otherwise entitled to relief to make any order or give direction in order to see that it gets the relief on the petition as it stands. The first contention of counsel for the respondent therefore, fails and is rejected.

12. To turn now to the next contention of counsel for the appellant, namely, that the purported order of revocation made by the State Government on April 4, 1962, was a nullity and as such it could not merge in the order made by the Central Government in revision. It was argued that there could be no question of merger of an order which was a nullity with another order madein revision thereof or on appeal therefrom. Mr Deb said that the revision application by his client was filed not against the order purported to have been made by the State Government on April 4, 1962, but against an order made on September 22, 1967 by which his client was asked to stop work and quit possession. He drew our attention to the revision application in which the number and date of the order of the State Government against which the revision application was filed, was stated to be order No. 924/M dated 11-4-1962 issued by the Collector, Keonjhar It was submitted that it could not be said that the appellant filed the revision application against the order of revocation purported to have been made on April 4, 1962. which order according to Mr. Deb, was a nullity.

13. The grounds on which the order of the State Government was argued to be a nullity were mainly two, namely, (a) violation of rules of natural justice as the appellant was not given an opportunity of making representations against the order of revocation and also was denied the opportunity of being heard and (b) the order was not communicated to the appellant and not disclosed. On the question, namely, the order of revocation by the State Government was invalid and void, as it was made without an opportunity of being heard having been given to the appellant, the trial Court held in favour of the appellant and came to the conclusion that the appellant's contention that the order was a nullity was justified. This contention of the appellant was contested by Mr. Chakrabarty appearing for the respondents on the ground that the appellant had no valuable right for the deprivation of which, it could claim an opportunity of being heard before the revocation order could be made. Mr. Chakrabarty referred to Section 13 of the Mines and Minerals (Regulation and Development) Act, 1948 and contended that there could be no title or interest in a mining lease unless a formal deed of lease had been executed. It was argued that until such a deed of lease was executed a lessee had no rights whatsoever. We cannot accept this contention of counsel for the respondents, inasmuch as, it is clear to us that the appellant was induced to go into possession of the land and operate the mine on a clear understanding and agreement that the State Government would grant a lease of the land to the appellant. Indeed, it cannot be overlooked that the respondents' case is that of revocation of a grant which was previously made and recovery of possession of land of which the appellant had taken possession. It is abundantly clear from the correspondence, that passed between the parties, that the State Government had agreed to grant a lease, and had directed the appellant to go into possession of the land and exploit the mines, until the State Government changed its mind in the matter, and decided to revoke the granted recoverpossession of the land from the appellant. In our view it cannot be said that the purported revocation did not amount to deprivation of a valuable right which had vested in the appellant. Once it is recognised that the appellant had lawfully acquired a valuable right to the land and also the right to operate and exploit the mines, it cannot but be held that the appellant could not be deprived of such a right without an opportunity of being heard being given to it. I shall hereafter refer to the several decisions on which counsel for the parties relied in support of their rival contentions on this question.

14. Counsel for the appellant contended that the order of revocation purported to have been made on April 4, 1962, was a nullity, as it was made admittedly and manifestly in violation of the principles of natural justice; and since it was a nullity, it was further argued, it could not possibly merge in the order made by the Central Government in revision on August 6, 1965. It was also argued that the revocation order itself being a nullity, the order made by the Central Government in revision could not have any better or greater validity. In other words, it was contended that the doctrine of merger does not apply to an order which was a nullity and that such an order could not make an order made in revision of the same a valid order.

15. Tn support of the contention that the order is a nullity on the ground that it was made in violation of the principles of natural justice counsel for the appellant relied on a decision of the Supreme Court in Ram-swarup v. Shikarchand, : [1966]2SCR553 . In support of his contention that even though an order has been made in revision, the order purported to have been made by the State Government on April 4, 1962, still exists as an independent order and can be struck down if invalid Mr. Deb relied on a decision of the Judicial Committee in Annamun-thodo v. Oil Fields Workers' Trade Union, (1961) 3 All ER 621. In that case a member of a trade union had agreed to obey and was subject to the rules of the union. He was charged with four specific offences but the rules under which he was charged gave no power to expel him but the rule provided a penalty. He attended the initial hearing of the charges before the General Council of the union and denied them. He, however, did not attend the adjourned hearing owing to engagement. He was notified that he had been convicted of all the charges and had been expelled under another rule to which no reference was made in the charges. The member concerned then appealed to the annual conference of delegates, who dismissed the appeal. Thereupon he brought an action for setting aside the order of expulsion. Dealing with the question of his right to relief in the action commenced by him Lord Denning said at P. 625 of the report that even if the order of ex-pulsion was capable of being affirmed or disaffirmed, an appeal could not be held to be an act of affirmance but OD the contrary it was disaffirmance and that it was proper for the member to have gone up in appeal in the annual conference before coming to the Court, even though he was not bound to do so. It was further held that if the original order was invalid for violation of rules of natural justice he could still complain of it notwithstanding his appeal. Relying upon this decision Mr. Deb contended that the mere fact that an order in revision had been made by the Central Government did neither save the purported order of revocation from being held to be a nullity, nor did it deprive the appellant of its right to attack the order of revocation on the ground that it was a nullity. Reliance was next placed by counsel for the appellant on a decision of the Judicial Committee in Macfoy v. United Africa Co. Ltd. also reported in (1961) 3 All ER 1169 for the proposition that an order which was a nullity was incurably bad and that every proceeding which was founded on it was also bad and incurably bad. Relying on this decision it was argued that the purported order of revocation being itself void, the order in revision made by the Central Government was also void and a nullity and even if no relief was asked for by the appellant with regard to the order made in revision, it still remained a nullity and could not affect the rights of the appellant. Reliance was next placed by counsel for the appellant on another English decision in Leary v. National Union of Vehicle Builders, (1970) 2 All ER 713. In that case a question was posed by the Learned Judge namely, can a deficiency of natural justice before a trial tribunal be cured bv a su f-ficiency of natural justice before an Appellate Tribunal? In that case a decision of a trial tribunal admittedly contravened the rules of natural justice, but it was argued that this defect had been cured by the subsequent hearings at the appellate stage wbere the rules of natural justice had been complied with. It was held that it was no answer to a charge of violation of rules of natural justice to say that although the trial tribunal's order was bad on that ground, nevertheless the order made by the tribunal and the appeal would be binding because rules of natural justice had been complied with at the appellate stage. The next decision relied on by Counsel for appellant was a Bench decision of the Madras High Court reported in : AIR1957Mad496 . In that case it was held that where an order of the inferior tribunal was a nullity the order on appeal therefrom could be of no greater validity.

16. It seems to us that the contention of counsel for the appellant on this aspect of the case is well founded. The order of revocation purported to have been made by the State Government on April 4, 1962, cannot but be held to be a nullity as admittedly it was made in violation of rules of naturaljustice, and since this was a nullity the order made by the Central Government in revision even assuming that it was a revision against the order of the State Government, can be of no greater value or effectiveness. If the foundation of a structure is removed, the superstructure cannot stand and must collapse. It is true that no charge has been made by the appellant for violation of rules of natural justice with regard to the order made by the Central Government in revision. But that is of no consequence. Even assuming the order made by the Central Government to be a good order as it was made upon due compliance with procedural rules and upon compliance with rules of natural justice, the order of revocation made by the State Government is not saved and cannot be sustained; and if that order cannot be sustained the order made in revision must fall along with it. It is to be remembered that the order of revocation was an administrative or executive order and so was the order made by the Central Government in revision. Different considerations, however, would apply where an order is made by a Court of law. But it is not necessary for us to go into that question as the order made in this case was not an order of a Court of law.

17. Before proceeding to deal with the contention of counsel for the respondents on this point I should refer to one other decision of the Supreme Court relied upon by counsel for the appellant, namely State of U. P. v. Mohammad Nooh, AIR 1958 SC 86. This decision was relied on for the proposition that where an order has been made by the inferior tribunal in contravention of rules of natural justice in a manner which offends sense of fair play, the superior Court might issue a writ of certiorari to correct the error of the tribunal of first instance, even if an appeal to another inferior tribunal was available and recourse was not had to it or if recourse was had to it, the appellate tribunal confirmed what ex facie was a nullity. It is plain to us that there is ample authority for the proposition that in a case where the decision or order of an inferior tribunal is a nullity, the decision of the appellate tribunal from the order of the inferior tribunal can have no better effect.

18. Mr. Nani Coomar Chakrabarti appearing for the respondents contested the above contention of counsel for the appellant on the ground that the order of the Central Government made in revision not having been challenged by the appellant in its writ petition, no relief could be granted to the appellant. He argued that even if the order of the State Government revoking the grant was struck down, the Central Government's order in revision would still stand and, therefore, no relief could be granted to the appellant. In support of this contention he relied on a decision of the Supreme Court in Madan Gopal v. Secy. to Govt. of Orissa., : AIR1962SC1513 . In that case the Orissa Govern-ment rejected an application for grant of a mining lease and thereupon a review application was made to the Central Government under Rule 57 of the Mineral Concession Rules, 1949. The review petition was rejected by the Central Government and thereupon a writ petition was filed. It was held that the writs of the Orissa High Court did not go beyond the territories subject to the jurisdiction of that High Court and the Central Government not being located within the territory subject to the jurisdiction of the Orissa High Court it would be useless to issue a writ against the Orissa Government as the Central Government's order rejecting the review petition would still stand. This decision came before the amendment of Article 226 of the Constitution and as it was based only on the question of territorial jurisdiction of the Orissa High Court it is of little assistance in this case. Secondly, what is of still greater importance is that there was no charge that the decision of the State Government was a nullity. Thirdly, under Rule 60 of the Mineral Concession Rules, 1949 the order of the Central Government passed in revision was final and there is no such provision in the Rules now in force. In my view these factors clearly distinguish the decision of the Supreme Court from the facts of the case now before us. Reliance was also placed by counsel for the respondents on another decision of the Supreme Court in Shankar Ramchandra v. Krishnaji Dattatraya, : [1970]1SCR322 . Tn that case it was held that where the appellant Court in exercise of its revisional jurisdiction dismissed the revision application that order became merged with the order against which the revision application was moved and thereafter the order made in revision could not be challenged by another set of proceedings in the High Court under Articles 226 and 227 of the Constitution. This decision in our view is of no assistance to the respondents, firstly, because it was an order of Court, and secondly, because the question of nullity was not involved as in the case now before us.

19. The next contention of the counsel for the appellant was that the State Government did not give any reasons in the order revoking the grant of the licence and the Central Government also rejected the revision application without assigning any reasons. It was argued that the order made by the State Government and also by the Central Government in revision are invalid as no reasons have been set forth as to why the grant has been rejected. In support of this contention reliance was placed on a decision of the Supreme Court in Bhagat Raja v. Union of India, : [1967]3SCR302 . This point, however, does not appear to have been taken before the trial Court and we do not sec any reason why we should allow the appellant to urge this point at this stage.

20. It was next argued by counsel for the appellant that the order was invalid asit was never communicated to the appellant. In other words, it was ccntendec that as the order of revocation clearly purported to affect the appellant's right tc property, and as this order was never communicated to the appellant the order of revocation did not affect the appellant's right to remain in possession of and exploit the mines. In support of this contention counsel for the appellant relied upon a decision of the Supreme Court in Bachhittar Singh v. State of Punjab, : AIR1963SC395 in which it was held that in order to make the opinion of the Slate Government a decision of the Government it must be communicated to the person concerned. Relying on this decision it was argued that the order of the State Government dated April 4, 1962, revoking the grant of the licence was at no stage communicated to the appellant, it did not have the effect of affecting the appellant's rights at all. I am, however, unable to accept the appellant's contention that the order of revocation was not communicated to the appellant. In Bachhittar Singh's case (supra) it was common ground that the order of the Revenue Minister setting aside the earlier order of dismissal and making an order of reversion was not at any stage communicated to the employee concerned. In this case, on the other hand, the letter of April 11, 1962. from the Collector of Keon-jhar clearly informed the appellant that the State Government had been pleased to revoke the order in which the mining lease was granted to the appellant. Indeed, it cannot be said that this was not an official communication. It is true that the order of the State Government as such was not communicated to the appellant, but it cannot be said that the appellant was never informed about the revocation order purported to have been made by the State Government. In our view, it cannot be said that the order is invalid and incapable of affecting the appellant's rights for want of communication of the same to the appellant. But though we hold that there was sufficient communicatiom of what is claimed to be an order of revocation, it has still to be seen if an order of revocation was at all made by the State Government and if no such order was at all made, none could be communicated and the purported communication could not bring one into existence.

21. The next contention of counsel for the appellant was that the order was bad for non-compliance with Article 166(1) of the Constitution. That article requires that all executive action of the Government or State shall be expressed to be taken in the name of the Governor and order and instruments made in the name of the Governor shall be autherticated in such a manner as may be specified in Rules to be (sic) Government, and the validity of an order which is duly authenticated shall not be call-ed in question on the ground that it is not an order made by the Governor. iN the caseit is claimed by the respondent that the order was made On April 4, 1962, that being the date on which the Secretary to the Government of Orinsa appended his signature to what is claimed to be an order of revocation. The memorandum which is claimed to to an order is as follows :--

'In view of the advice given by the Law Department there could be no objection to issue an order revoking the grant of the mining lease to Messrs. Serajuddin and Co., in respect of the area of 99 acres in Keon-thar District relating to which he filed a writ petition and which has since been dismissed. The Collector may also be directed to ask the party to slop working the mines immediately and to intimate the date of stoppage of working the mine thereafter. Further action to be taken will depend on the information to be made available by the Collector'.

22. Tt is the order mentioned above which is claimed by the respondent to be the order of revocation. The appellant contended that assuming this was the order, it must be held to be invalid for non-compliance of the provisions in Article 166 of the Constitution. In support of this contention reliance was placed by counsel for the appellant on a decision of the Supreme Court in Dattatraya Moreshwar v. State of Bombay, : 1952CriLJ955 . In that case it was held that whenever executive action was taken by an order or instrument, it should be expressed to be taken in the name of the Governor, in whom the executive power of the State was vested and it should further be authenticated in the manner specified in the Rules framed under Clauses (1) and (2) of Article 166 and that when an order was authenticated in compliance with Clauses (1) and (2) the order would be immune from challenge in a court of law. It was also held that non-compliance with these provisions would lead to the result that the order in question would loose the protection which it would otherwise enjoy if the proper mode for expression and authentication had been adopted, and that if an order is challenged in a court of law on the ground that it was not made by the Governor, the onus would be upon the State authorities to show affirmatively that the order in fact was made by the Governor in accordance with Rules framed under Article 166 of the Constitution. It was finally held that the provision in Article 166 was directory and not mandatory in character. Relying on this decision it was firstly argued that ex facie there was non-compliance with Clause (1) of Article 166 as the purported order was not expressed to have been taken in the name of the Governor. It was secondly argued that there was no authentication as required by Clause (2) of Article 166 and there were no Rules made by the Governor regarding authentication of executive order.

23. In contesting the argument of counsel for the appellant, counsel for the respondent relied on the affidavit affrmed byUpendra Nath Mandal on November 13, 1970. In paragraph 3 of this affidavit it is stated that the order of revocation of the grant was passed by Sri D. L. Purakayastha, Secretary to the Government of Orissa, Department of Mining and Geology, as the Official Head of that department in accordance with Rule 6 of the Business Rules, after obtaining necessary opinion of the Legal Remembrancer, Orissa. In support of this contention counsel for the respondent relied on a decision of the Supreme Court in Chitra-lekha v. State of Mysore, : [1964]6SCR368 . for the proposition that the provisions of Article 166 were directory and not mandatory and that even if an order of the Slate Government was not made in accordance with the provisions in Article 166, it could still be eslablished as a question of fact that the order was issued in fact by the State Government or the Governor. This decision to our mind is of no assistance to the respondents in this case because it does not appear from the materials on record that apart from the office notes of the Legal Remembrancer and the Secretary and Deputy Secretary hereinafter referred to any order was made by the State Government revoking the sanction of the lease to the appellant.

24. It appears from the note quoted above, which is claimed to be the order of revocation, that it records that there would be no objection to issue an order revoking the grant of the mining lease to Messrs. Serajuddin and Co. It is apparent that this is not the order itself and it contemplates an order to be made for the purpose and records that there would be no objection to the issue of such an order. Counsel for the respondent, however, claimed that the note quoted above is the order itself and should be treated as such. We are unable to accept this contention. We have no doubt in our mind that the note signed by Sri P. Tripathi, Deputy Secretary, on April 3, 1962, and by Sri D. L. Purakayastha, Secretary, on April 4, 1962, cannot be treated to be the order of revocation. This note is an office note by the Deputy Secretary of Mining and Geology Department, for consideration by the Secretary of that Department. In this note the words :-- 'There could be no objection to issue an order revoking the grant of mining lease' make it clear that a separate and independent order is contemplated by the note, and that the note is not the order itself. If this is the order of revocation itself, to be communicated to the party concerned as such, it would be altogether meaningless and irrelevant. What is still more significant, however, is that in the note of the Legal Remembrancer printed at pp. 109-110 of the paper book, the office note has been set out verbatim at the bottom of the Legal Remembrancer's note and thereafter the following note appears: 'Therefore, orders revoking the grant order for execution of the lease may now be obtained so that the Col-lector may take over possession of ihc mines immediately.' This note makes it abundantly clear that the note signed by the Deputy Secretary on April 3, 1962, and by the Secretary on the following day is not the order of revocation of the grant of mining lease. If the note signed by the Secretary on April 4, 1962, is to be treated as the order of revocation there could be no point in recording after the note that: 'Orders revoking the grant order for execution of the lease may now be obtained'. In our view, therefore, an order for revoking the mining lease was not made by the State Government at any point of time, though the office note quoted above authorised issue of such an order. In our view therefore, no order of revocation was made by the Slate Government at any stage. I shall revert to this subject later when I deal with the question of Rules of business.

25. Our attention was drawn by counsel for the respondent to another decision of the Supreme Court in State of Punjab v. Khemi Ram, : [1970]2SCR657 , in support of his contention that the letter from the Collector, Keonjhar, was sufficient communication of the order of revocation to the - appellant. In that case it was held that where a Government servant was on leave preparatory to retirement and an order suspending him was communicated to him by telegram to his home address before his date of retirement, there was sufficient communication of the order of suspension and it was immaterial when he actually received the order. This decision is of no assistance to the respondent as there was no dispute that an order of suspension was made, and the only question was whether although the formal order of suspension was not received by the employee. until after the date when he was due lo retire, the order became effective from the date of communication, and it was immaterial when he actually received the order. In the case now before us no order of revocation appears to have been made by the State Government as we have held earlier in this judgment and, therefore, none could be communicated to the appellant. The appellant's contention in this case is that since there was no order of revocation of the grant of lease there could be no communication of any such order. On the materials on record an order of revocation of the grant was never in fact made by the State Government and, therefore, there could be no communication of any such order of revocation.

26. Counsel for the respondent argued that the writ petition was not maintainable on the ground that no legal right of the appellant had been infringed or invaded. He argued that the foundation of the exercise of jurisdiction by this court of powers under Article 226 was the existence of a legal right and the infringement thereof. In support of this contention reliance was placed on a decision of the Supreme Court in State ofPunjab v. Suraj Prakash, : [1962]2SCR711 . In this case it was held the appellant had neither any legal right nor was there any infringement of such a right. It was next argued on behalf of the respondent that this was a case of grant of a mining lease, which was subject-matter of an agreement and assuming that there was a breach of the agreement for grant of the mining lease, the proper remedy of the appellant was to seek relief in a duly constituted suit and not by a petition in the writ jurisdiction of this Court. In support of this contention reliance was placed on a decision of the Supreme Court in State of Orissa v. Ram Chandra Dev, : AIR1964SC685 . Relying on this decision it was argued that the case involved question of title to immovable property and, therefore, it ought not to be tried in the writ jurisdiction of this court and that being so, the appellant had no right to maintain a writ petition to enforce its claim under the agreement to grant a lease.

27. On the question that the appellant had no legal right and that its rights to the property had been extinguished, reliance was placed by counsel for the respondent on Rule 28-A of the Mineral Concession Rules, 1949, which says that when a mining lease is granted, the formal lease shall be executed within 6 months of the order sanctioning the lease, and if no such lease is granted within this period the order sanctioning the lease shall be deemed to have been revoked. It was argued that as more than 6 months had expired since the grant of the lease and no formal lease had been executed within a period of 6 months, (quite ap-part from the order of revocation) the order sanctioning the lease should be deemed to have been revoked by operation of Rule 28-A. We are unable to accept this contention of counsel for the respondent for more than one reason. In the first place if the order sanctioning the lease is to be deemed to have been revoked under Rule 28-A of the said Rules, there was no point in the respondent's claim that an order revoking the leise had been made on April 4, 1962. In the Second place, under the proviso to Rule 28-A the lease cannot be deemed to have been revoked as admittedly the State Government permitted the appellant to remain in possession of the leasehold property long after the expiry of 6 months and kept in requesting the appellant to expedite the execution of the lease. It is clear, therefore, that the State Government permitted the appellant to execute the formal lease after the expiry of the period of 6 months. For these reasons, the contention on behalf of the respondent that the grant of lease should be deemed to have been revoked cannot be accepted.

28. Turning now to the contention ofcounsel for the respondent that the questions involved in the writ petition related to immovable property and, therefore, the appel-lant was not entitled to relief on a writ petition, it is to be seen that the subject-matter of challenge in the appellant's writ petition wits the order made by the Secretary to the State Government on September 22, 1967, on the ground that the order of revocation of the grant of lease purported to have been made by the State Government was a nullity firstly because of violation of rules of natural j ustice and secondly because no such order was in existence and none was communicated to the appellant at any time. It should be borne in mind that it is now settled law that even in respect of executive orders the State Government or a public or statutory authority is to act fairly so as not to infringe a legal right. If the appellant had the legal right to occupy the land and exploit the mineral, and if such a right is infringed by an order made in violation of rules of natural justice, such an order would be open to review by this court in its exercise of writ jurisdiction. It may be that the effect of the order whether upheld by this court or struck down by appropriate writs would have the effect of affecting the right to immovable property. But the mere fact that the right to property is 'involved cannot exclude the jurisdiction of the writ court to adjudicate upon the validity of the order which is challenged on the ground that it was made in violation of the rules of natural justice.

29. Furthermore, the interpretationand effect of the Mineral Concession Rulesof 1949 and 1960 are clearly involved inthis case. On the one hand it was claimedby counsel for the respondent that underRule 28-A of the 1949 Rules the order sanctioning the lease should be deemed to havebeen revoked as a formal deed of lease hadnot been executed within 6 months from thedate of sanction of the lease. On the otherhand, Mr. Deb contended that there was nosuch provision in the I960 Rules which wereapplicable in this case, under which it couldbe said that the sanction of the lease stoodautomatically revoked as the formal document was not executed within a certainperiod. It is in this context, and keepingin mind the rival contentions of the parties,that the question of the appellant's right tomaintain the writ petition has to be determined. It is well settled that the question oftide to immovable property which involvesdetermination of disputed questions of factcannot ordinarily be adjudicated upon bythe writ Court in exercise of its jurisdictionunder Article 226. But this is primarily because of the fact that such questions cannotbe decided without taking into consideration evidence, both oral and documentary,which can be more conveniently gone intoin a suit. But where, as in this case, thereis no dispute on the questions of fact andthe challenge is to an order directing a partyto quit possession and cease work on Government land, and where such a challenge isbased on the ground that it is a nullity for violation of rules of natural justice, and also on the ground that such an order was never in fact made by the State Government. I see no reason why the writ court would be incapable of giving relief to a petitioner, if otherwise he is entitled to such a relief.

30. Counsel for the appellant contended that his client was not seeking to enforce in the writ petition a contractual right only, but its claim was based on a statutory right. He said that the claim was based on the rights conferred upon him under (he Mines and Minerals (Regulation and Development) Act, 1957 and the Mineral Concession Rules of 1949 and 1960. He drew our attention to a letter from the Under-Secre-tary to the Government of Orissa dated December 3, 1949, addressed to several parties. This letter is Annexure 'A' to the petition and in this letter the parties were invited to submit fresh applications for mining lease in accordance with the provisions of the said Act and the Rules. Our attention was alsa drawn to paragraph 4 of the petition in which it is stated that the appellant was invited to submit application for a mining lease in accordance with the provisions of the said Act and the Rules and to Rule 3) of the Mineral Concession Rules, 1960, which empowers the State Government to revoke an order granting a mining lease, if a lease is not executed within 6 months of the order, or within such further time as the State Government may allow. Relying on this provision in the Rules and the invitation of the State Government to the appellant to submit an application for a lease, counsel for the appellant contended that what his client was seeking to enforce was a statutory right and not a contractual right. It seems to us that this contention of counsel for the appellant is well founded. A mining lease could be granted only under the provision of the said Act and the Rules, and the appellant was invited to make an application in accordance with these Rules. Such an application was made, and the State Government agreed to grant a lease to the appellant, and allowed it to go into possession and exploit the mines. It is now claimed on behalf of the State Government that the grant has been revoked, as no lease was executed within the period contemplated by the said Rules. This right of the State Government is the subject-matter of challenge in the writ petition in which the validity of an order made on September 22, 1967, directing the appellant to cease works and quit possession had been made. It seems to us that the rights of the appellant, such as they are, are statutory rights under the said Rules and the claim of the State Government to revoke the grant of the lease is also founded on the provision in the said Rules. It cannot, therefore, be said that the claim of the appellant is based only on a contract and, therefore, such claim should be enforced in a suit only. Before proceeding to consider other questions Ishould briefly refer to a Bench decision of this Court, to which I was a party, relied upon by counsel for the respondent. This decision is reported in : AIR1973Cal220 . In that case an order of reversion was challenged on the ground that it was expressed to have been made in the name of the Governor. The validity of the order, however, was upheld because it was proved that under the Rules of Business, an order relating to the Police Department was required to be made by a Secretary to the Government, and an affidavit was affirmed by the Chief Secretary to the State Government, in which it was stated that the order was made by the Home Secretary in consultation with the Chief Secretary. It was in these facts that it was held that Rules of Business having been complied with, the order of reversion could not be challenged on the ground that it was not expressed to be made in the name of the Governor. In this case, on the other hand, no Rules of Business have been produced before us in support of the contention that the order though not made in the name of the Governor was a valid order, as the requirement of the Rules of Business had been complied with. The only Rule on which reliance was placed by counsel for the respondent in support of his contention was Rule 6 (iii) of Orissa Secretariat Instructions No. 1 which is printed at p. 91 of the Paper Book. This Rule, as we read it, deals with the question of the authority of the Secretary/Additional/ Joint Deputy Secretary or Under-Secretary to decide a case himself and also to decide if it was a matter of such importance that it should be submitted to a higher officer. Even if this Rule is construed to confer on a Secretary or Additional or Joint or Deputy or Under-Secretary to take a decision in a matter or to make an order on behalf of the State Government, the question is where is the order of the State Government dated April 4, 1962 As I noticed earlier the office note of the Deputy Secretary of April 3, 1962 bearing an endorsement of D. L. Purakayastha dated April 4, 1962 can by no means be said to be an order made by the Secretary or the Deputy Secretary. On a a plain reading of the office note it is clear to us that it is a decision to the effect that there is no objection to issue an order revoking the grant of the mining lease to the appellant. The third endorsement of the Secretary at the bottom of this office note is as follows:

'D. S. order above. Draft for approval.'Quite plainly the Secretary was directing the Deputy Secretary to put up a draft of the order to be made for approval. No such draft of order, much less a final order, appears to have been made and communicated to the appellant. Even assuming, therefore, that the Rule mentioned above authorises, the Secretary or the Deputy Secretary to make an order, we cannot but come to theconclusion that no such order was ever made, and no such order came into existence. The office note mentioned above authorising the issue of an order revoking the grant of the mining lease appears never to have been implemented and acted upon. If an order as contemplated by the office note was in fact made, before such an order could be made a draft of the order for approval of the Secretary must have been made by the Deputy Secretary and sent to the Secretary for approval. No such thing appears to have been done. The order contemplated by the office note never came into existence. In these facts there is no escape from the conclusion that counsel for the appellant was right in his contention that no order was made by the State Government for revocation of the grant of the mining lease to the appellant, and that being so, the order dated September 22, 1967, made by the Secretary to the State Government, directing the appellant to stop working and to quit possession of the land was invalid. Counsel for the respondent said that this order of the Secretary was only a consequential order, made pursuant to an order previously made revoking the grant made by the State Government. He is right in his contention because the Secretary in the order of September 22, 1967, clearly recites as follows: 'Whereas you failed to execute the said lease till April 1962 and the orders of grant were revoked by the State and you were asked to stop working of the mines and quit possession immediately by the Collector, Keonjhar, in the letter No. 924, dated 11-4-1962 which was received by you in time.'

31. This order, which is the subject-matter of challenge in the writ pelition, appears to have been made sometime after an order purported to have been made revoking the grant of the mining lease, and was in truth intended to give effect to the order of revocation. It concludes by directing the appellant to stop working, and quit possession of the area, within a period of 30 days from the date of receipt of the notice, failing which action will be taken as deemed proper. Quite plainly the respondents intended the communication of September 22, 1967, to be a notice to the appellant pursuant to the order purported to have been made revoking the grant. But no order revoking the grant having been made the notice itself which is founded on a previous order of revocation cannot be sustained. If the order of revocation itself was not made, the Secretary had no authority or jurisdiction to issue the notice or order directing the appellant to stop work or quit possession of the area.

32. I now come to the revision application filed by the appellant under Rule 54 of the Mineral Concession Rules, 1960. This application was directed against the order of the Collector, Keonjhar, made on April 11, 1962. There is no reference in the application to the order claimed to have been madeby the State Government on April 4, 1962. The order of the Collector, as I have noticed earlier, also requested the appellant to stop work of the mine on receipt of the order and to quit possesion forthwith. This order of the Collector was also incidental to the purported order of revocation claimed to have been made by the State Government earlier. If no such order was made by the State Government revoking the grant of the mining lease, the Collector Keonjhar, could have neither authority nor jurisdiction to issue an incidental order requiring the appellant to stop work and quit possession. Assuming this order bas merged in the order made by the Central Government on the revision application of the appellant, the order made in revision can have no better or greater effect that the order made by the Collector on April 11, 1962. The Collector's order was an order made without jurisdiction, as it did not have the previous order of the State Government revoking the lease to support it. The order of the Central Government made in revision can certainly be not of any greater efficacy. That conclusion seems to us to be irresistible.

33. Tt seems to me, however, that what the appellant sought in the writ petition was not an order for enforcement of its rights, but a writ or order striking down the order dated September 22, 1967. It is this order which is the subject-matter of challenge in the writ petition. The appellant did not ask for a writ or order directing the respondent to execute a lease in respect of the land, nor did it seek any relief with regard to any agreement for grant of a lease. The appellant's contention is that the order of September 22, 1967, was invalid as there was no order of revocation, which alone could have enabled the respondents to make the order complained of, and secondly because the order complained of was made in violation of rules of natural justice. It has made a specific case in paragraph 25 of the petition that no notice of hearing or opportunity of being heard was given to the appellant with regard to the purported order of revocation of the grant and of the working permission. It is true that it is an administrative or executive order but even in such order the State Government should have acted fairly and justly. It is not denied by the respondents that no opportunity of being heard was given to the appellant either with regard to the purported order of revocation of grant made on April 4, 1962, or with regard to the impugned order of September 22, 1967. The observations of the Supreme Court in A. K. Kraipak v. Union of India, : [1970]1SCR457 that the dividing line between administrative power and quasi-judicial power was thin and was being gradually obliterated and that even in exercise of administrative power the State and its administrative officers should act fairly and justly are apposite. Quite plainly the ap-pellant was vitally affected by the purported order of revocation and the impugned order to cease work and quit possession. It had invested large sums of money and had worked the mines for a number of years with the licence and permission of the State Government. If the State Government thought that an order of revocation of the grant or the impugned order of September 22, 1967, should be made, it should have given to the appellant an opportunity of being heard and to show cause why such orders should not be made. Neither the statute nor the rules prohibit an opportunity of being heard being given to a party. If such was the case, namely, that the statute or the rules provided that an order of revocation of the grant or an order to stop work and quit possession could be made and it was not necessary to give an opportunity of being heard to be given to the party concerned, there would have been an end of the matter. But that is not the case here. Neither the statute nor the rules forbid an opportunity of being heard being given to the party concerned.

34. Our attention was drawn by counsel for the appellant to the decision of the Supreme Court in D. F. O., South Kheri v. Ram Sanehi Singh, : AIR1973SC205 . In that case at an auction by the Forest Officer a person purchased the right to cut timber for a certain period from specified forest lots. An order was made by the Divisional Forest Officer that certain sleepers cut against the allotment of 1965-66 were 'wrong' as they were cut in November, 1966, and cancelled those sleepers and directed that they be 'passed against' the allotment for 1966-67. The timber was already removed by the purchaser with the sanction of the forest authorities. A writ petition filed by the purchaser was dismissed by the trial court but an appeal preferred against the judgment was allowed by the Division Bench of the Allahabad High Court. The matter ultimately went up to the Supreme Court and it was held that merely because the source of a right was initially in a contract, the party injured by an arbitrary and unlawful action on the part of a public authority was not bound to resort to a suit and was not debarred from getting the relief in a writ petition. It was further held that as the Divisional Forest Officer made the order of cancellation without calling for an explanation from the purchaser and gave him no hearing before passing the order, the order was liable to be set aside on the simple ground that it was passed contrary to the rules of natural justice. On the same point reliance was also placed by counsel for the appellant on the decisions of the Supreme Court reported in AIR 1968 SC 718 and : [1970]3SCR854 . The position seems to us to be that even if the contention of counsel for the respondent that the appellant's rights were based on a contract is accepted, the order of revocationpurported to have been made on April 4, 1962, as also the impugned order must be struck down on the ground of violation of rules of natural justice, as no opportunity was given to the appellant to make representations against the purported order of revocation and the impugned order. Assuming such an order of revocation was made as claimed by the respondents, it ought not to have been made without giving to the appellant an opportunity to make representations against the proposed order of revocation. Admittedly in this case no such opportunity was in fact given and, therefore, the impugned order must be struck down.

35. The appellant, it should be remembered, has asked for appropriate writs and orders against the order dated September 22, 1967. The order of revocation of the grant claimed to have been made on April 4, 1962, was not the subject-matter of challenge in the writ petition, because as I have noticed earlier no such order was communicated to the appellant. The order of September 22, 1967, is based on the purported order of revocation made by the State Government, as appears from the text of the recital in the order itself. Counsel for the respondent was right in his contention that the order of September 22, 1967, was incidental to the order of revocation made by the State Government. It is to be noticed that even with regard to the order of September 22, 1967, incidental to the order of revocation though it was, no opportunity of being heard was given to the appellant. The appellant was summarily directed to stop work and quit possession without in any way being called upon to explain why such an order should not be made against it.

36. If the order of revocation purported and claimed to have been made by the State Government on April 4, 1962, goes, as it must, the order of September 22, 1967, must go along with it, as it cannot stand on its own. This order is founded on the earlier order of revocation purported to have been made by the State Government. If the foundation goes the superstructure cannot remain. This conclusion, in our view, is inescapable in the facts of this case. It is no more open to a public servant to act arbitrarily in violation of the cardinal and fundamental principle of natural justice namely, an opportunity of being heard and of making representations against an order proposed to be made affecting the rights of a citizen, even if such a right initially arises from a contract. Even if such an order is duly and lawfully communicated to the party affected it cannot be sustained and must be struck down on the ground of violation of the cardinal and fundamental principle of natural justice mentioned above.

37. For reasons mentioned above, this appeal is allowed. The judgment and order under appeal are set aside. The rule is made absolute. Let a writ in the natureof mandamus issue directing the respondent No. 1 to withdraw, recall and cancel the order dated September 22, 1967, and forbear from giving effect thereto in any manner. Each party to pay its costs. The respondents will however, be at liberty to act according to law.

A.K. Janah, J.

38. I agree.


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