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PETITIONER: SATYANARAYANA SINHA

       Vs.

RESPONDENT: M/S S. LAL AND COMPANY (PVT.) LTD.

DATE OF JUDGMENT10/09/1973

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN DWIVEDI, S.N.

CITATION:  1973 AIR 2720            1974 SCR  (1) 615  1973 SCC  (2) 696  CITATOR INFO :  F          1976 SC 578  (33)

ACT: Practice-Constitution    of   India,   1950,    Art-226-Writ jurisdiction  of High Court-If can be invoked by person  not aggrieved.

HEADNOTE: The first respondent filed a writ petition in the High Court challenging the grant of a mining lease to the appellant  on the  ground  of a direct. infringement of his  right  to  be granted a mining lease over an area for which he applied for a  mining lease and which, according to him, formed part  of the  area for which the appellant was given the lease.   But in  fact,  the  first respondent’s application  was  not  in respect of any part of the area for which the appellant  was granted a mining lease.  Though the appellant was made party to  the  proceeding, he did not appear as notices  were  not served  on him.  The High Court allowed the petition in  the view  that there was a violation: of s. 31 of the Mines  and Minerals (Regulation and Development) Act, 1957, and rr.  58 and 59 of the Mineral Concession Rules 1960. Allowing the appeal to this Court, HELD : The first respondent had no interest in the  subject- matter of the lease, and the petition was not  maintainable. [618 G-H] Though  this contention was not urged before the High  Court as  the  appellant did not appear in the  High  Court,  this Court,  in appeal, can not only determine the  soundness  of the  decision, but has jurisdiction to determine  any  point raised before, it, such as, whether the appeal is competent, whether  a party has a locus standi to present the  petition and  whether the petitioner was  maintainable.   Ordinarily, the foundation for exercising the jurisdiction under Article 32  or Article 226, is the personal or individual  right  of the  petitioner himself, though in cases of writs of  habeas corpus or quo warranto, the rule may be relaxed.  In respect of persons who are not aggrieved and who seek to invoke  the jurisdiction  of  the High Court or this Court,  the  matter rests ultimately on the discretion of the Court, and depends on  the nature and extent of the right or interest  said  to have been infringed and whether the infringement affects the

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petitioner in some way. [619 A-B, D, G-H] In   the  present case, the first  respondent  only  alleged direct infringement of his right,but it was found that  no right of his had been affected.  He was neither aparty  nor a person aggrieved or affected and hence had no locus standi to file the petition. [620 B-C] Ebrahim  Aboobakar  and  Another  v.  Custodian  General  of Evacuee   Property,   [1952]  S.C.R.  696,   Chiranjit   Lal Chowdhuri,  v. The , Union of India, [1950] S.C.R. 869,  The State of Orissa v. Madan Gopal Rungta, [1952] S.C.R. 28, The Calcutta Gas Company (Proprietary) Ltd. v. The State of West Bengal   and   Others  [1962]  Supp.  3  S.C.R.   1,   Godde Venkateswara Rao v. Government of Andhra Pradesh and  Others [1966] 2 S.C.R. 172 and R. v. Thamples  Magistrates’   Court ex. p. Greenbaum, [19571 55 L.C.R. 129-extracted in  Yardley Source  Book  of English Administrative Law, 1970,  P.  228, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2572 (N)  of- 1972. Appeal by certificate from the Judgment and Order dated  4th April   1972  of  the  Patna  High  Court  in   Civil   Writ Jurisdiction Case No. 1121 of 1969. 616 B. P. Singh, for the appellant. Lal  Narain  Sinha,  Solicitor General of India  and  S.  P. Nayar, for respondent Nos. 2 and 6. D. Goburdhan, for respondents Nos. 3-5. The Judgment of the Court was delivered by, JAGANMOHAN  REDDY,  J. The appellant was granted   a  mining lease  on August 30, 1969 by the State of Bihar  (Respondent 3)  with  the  prior  approval  of  the  Central  Government (Respondent  2) for winning a mineral known as Apatite  over as  area  of  1999.634 acres.  Respondent  1  filed  a  writ petition on September 15, 1969 challenging the lease on  the ground that he had earlier on March 22, 1965, applied for  a mining  lease  over  an  area of  280.62  acres  in  certain villages  of  Singhbhum District which was included  in  the lease granted to the appellant, but as no orders were passed by  the  State Government within the  statutory  period  the application   was  ,deemed  ’to  have  been  rejected.    He thereafter   filed  a  revision  petition  to  the   Central Government  which  called  for the  comments  of  the  State Government.   The State Government intimated to the  Central Government  that it wanted to work the area itself  and  for that  reason had in fact rejected all the  applications  for this  area  including  that of  the  first  respondent.   On receipt of this comment, the Central Government rejected the revision petition of the first respondent. It   appears   that  the  appellant  had  pursuant   to   an advertisement  in the newspapers applied along  with  others for  the  grant  of  a  mining  lease  for  phosphatic  rock (Apatite)  over  an  area  of  4.1  sq.  miles  in   village Khajurdari   in   Singhibhum   District.    But   all   ’the applications  were rejected as the State Government  had  by then  decided  to work the phosphatic bearing areas  in  the public sector.  Later, however, as 3rd respondent felt  that such a venture could be better undertaken by a private party rather  than the State Government in view of  the  dispersed nature  of  the deposits, whose concentrated  and  efficient supervision  may not be possible through the public  sector, it  decided to release the area in question to be worked  in

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the private sector.  Accordingly permission was sought  from the Central Government and an advertisement published in the newspapers  for  the general information of  the  interested parties  who may be willing to set up a  benefication  plant for  upgrading the low grade Apatite to ensure its  use  for the production of phosphatic fertiliser and who were capable of making an investment to the extent of Rs. 40 to 50 lakhs. The  appellant  who  is reported  to  be  financially  sound submitted  a scheme for setting up a benefication plant  for upgrading  the Apatite.  In view of the financial  solvency, of  the  appellant his application was  recommended  to  the Central  Government.  The Central Government  accepted  this recommendation and directed the grant of the mining lease in the following terms :               "  The Central Government in the  interest  of               mineral development, in exercise of the powers               conferred  by  subrule (2) of rule 58  of  the               Mineral Concession Rules, 1960,               61 7               hereby authorise the State Government to grant               mining lease for apatite over the area to  Dr.               Satya  Narain  Sinha  without  following   the               procedure  laid  down in sub-rule (1)  of  the               said Rule 58 of the Mineral Concession  Rules,               1960.               Further in exercise of the powers conferred by               section   31   of  the  Mines   and   Minerals               (Regulation  and Development) Act,  1957,  the               Central Government hereby authorise the  State               Government to grant mining lease to Dr.  Sinha               over the area in question which does not  form               a compact block.               The  Central Government also, in  exercise  of               the  powers  conferred by proviso  to  section               6(1) of the Mines and Minerals (Regulation and               Development)  Act, 1957, authorise  the  State               Government  to grant mining lease for  apatite               over  the areas to Dr. Sinha in excess of  the               limit of 10 square miles prescribed in section               6(1) and (b) of the said Act." Immediately on getting to know of the approval given by the Central  Government to the grant of the mining lease to  the appellant,  the first respondent moved the State  Government for a stay and though that application was rejected he  made several  other attempts but without any success.   The  last revision application was filed on November 17 1970 under  r. 54 of the Mineral Concession Rules--hereinafter referred  to as  ’the Rules’-before the 2nd respondent on which an  order dated November 23, 1971 was passed.  This order as disclosed fly the 1st respondent in his supplementary affidavit  shows that  the  Central  Government  had  in  exercise  of  their revisional  powers under r. 55 of the Rules, set  aside  the orders  of  the  State Government and directed  it  to  give further  consideration and pass appropriate orders within  a period of four months in as much as the State Government had not  followed  the  correct procedure in  dealing  with  the application of the 1st respondent. At  this  stage we may point out that in the  writ  petition filed  by  the first respondent though the appellant  was  a party  it seems he did not appear and the proceeding was  ex parte.   The  appellant’s case is that as  no  notices  were served on him, nor was there any proof of service as neither the covers in which the registered notices were sent nor the acknowledgment cards had been returned to the Court, he  did not have an opportunity to be heard.  No doubt the State  of

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Bihar  and the Central Government had opposed  the  petition but  the  High  Court  came  to  the  conclusion  that   the conditions  required for relaxation of the Rules in  special cases under s. 31 of the Mines and Minerals (Regulation  and Development)  Act,  1957 (hereinafter termed the  Act)  read with rr. 58 & 59 of the Rules, were not complied with  while according its approval for the grant of the mining lease  to the  appellant.  in this view it allowed  the  petition  and quashed the lease in favour of the appellant. Before  us  it  is  contended  by  the  appellant’s  learned advocate  that the appellant did not have an opportunity  of urging before the Court 618 that  the writ petition filed by’ the first  respondent  was not maintain.able, because he is- not a person aggrieved  as the  area  for  which  the ,first  respondent  had  made  an application  for the grant of mining lease was not  included in the area granted to the appellant.  He further  ,contends that  reasons were given by the State of Bihar while  recom- mending  the grant of the lease to the  Central  Government, which reasons, at any rate one of them as is evident  from the  order of the Central Government, were approved.   There is,  according to him, no infringement of the provisions  of s. 31 of the Act read with rr. 58 & .59 of the Rules. The  learned  Solicitor-General  on behalf  of  the  Central Government  supports  the grant of the mining lease  to  the appellant  on  the  ground that r. 59 of the  Rules  is  not applicable  to  the facts of this case inasmuch as  the  3rd respondent  had not taken any firm decision to  reserve  the area  granted  to  the  appellant,  which  is  a   necessary condition  of the applicability of that rule.  If that  rule did not apply then he submits the procedure prescribed in r. 58  which is referred to therein need not be complied  with. He further submits that even if r. 59 is applicable, reasons have  been recorded by the Central Government  for  relaxing the Rules as required in s. 31 of the Act. In  so far as the 3rd respondent-the State of Bihar-is  con- cerned, there has been a volte-face in its stand before  us. After having called for the applications and recommended the lease  in favour of the appellant, and after  having  placed him in a position where he had to incur huge expense, it now wants  to  contend that the grant of the lease  is  invalid. Even the first respondent, once he found, that the area  for which he applied for a lease was not included in the  appel- lant’s  lease, seems to have perferred to remain  absent  in the  case, but the State Government wants to  challenge  the validity  of the lease which it did not do before  the  High Court. There  is no doubt, as the High Court has pointed out,  that where  by relaxing the Rules the Central Government  intends to  authorise in any case the grant, renewal or transfer  of any  prospecting licence or mining lease, or the working  of any  mine  for the purpose of searching for or  winning  any mineral,  on terms and conditions different from those  laid down in the Rules made under s. 13 of the Act, it can do ’so for  reasons  to be recorded in writing.  Whether  any  such reasons  can  be  said to have been recorded  in  the  order authorising  the grant of the lease on terms and  conditions different from those laid down in the Rules made under s. 13 of the Act need not concern us in this case, because, in our view, as the writ petition has been filed by a person who is not the person aggrieved, it is not maintainable. As already pointed out it is admitted by respondents 2 and 3 that the application made by the first respondent was not in respect  of the area which is granted to, the appellant  and

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consequently  the  first respondent had no-interest  in  the subject-matter of the lease.  Even                             619 though this contention was not urged before the High  Court, and  in the circumstances adverted to by us could  not  have been  urged, as the appellant did not appear, this Court  in an  appeal  can  not only determine  the  soundness  of  the decision, but has jurisdiction to determine any point raised before it, such as whether the appeal is competent,  whether a party has locus standi to present the petition and whether the petition is maintainable etc.  See Ebrahim Aboobakar and Another  v.  Custodian General of Evacuee  Property(1).   In Chiranjit Lal Chowdhuri v. The Union of India(2) it was held by  this  Court that the legal right that  can  be  enforced under Art. 32 must ordinarily be the right of the petitioner himself  who  complains  of infraction  of  such  right  and approaches  the  Court  for  relief.   In  respect  of   the jurisdiction under Art. 226 of the Constitution it was  laid down  in The State of Orissa v. Madan Gopal  Rungta(3)  that the existence of the right is the foundation of the exercise of  jurisdiction  of  the  Court  under  Art.  226  of   the Constitution.  The right to which this Court had adverted as being  the foundation for exercising the jurisdiction  under Art.  32 or Art. 226 of the Constitution, according  to  The Calcutta Gas Company (Proprietary) Ltd. v. The State of West Bengal   and  Others(4)  is  ordinarily  the   personal   or individual  right of the petitioner himself, though  in  the case of some of the writs like habeas corpus or quo warranto this  rule may have to be relaxed or modified.   Subba  Rao, J., as he then was, observed in that case :               "Article 226 confers a very wide power on  the               High  Court to issue directions and  writs  of               the   nature   mentioned   therein   for   the               enforcement of any of the rights conferred  by               Part  III  or for any other purpose.   It  is,               therefore, clear that persons other than those               claiming fundamental rights can also  approach               the court seeking a relief thereunder." After citing the above passage in Godde Venkateswara Rao  v. Government of Andhra Pradesh and Others(5) the learned Judge who delivered the judgment in this case also observed at  p. 181 :               "A personal right need not be in respect of  a               proprietary  interest : it can also relate  to               an  interest  of a trustee.   That  apart,  in               exceptional    cases,   as   the    expression               ,,ordinary"  indicates, a person who has  been               prejudicially  affected by an act or  omission               of  an authority can file a writ even  though-               he  has  no  proprietary  or  even   fiduciary               interest in the subject-matter thereof." In  respect  of persons who are strangers and  who  seek  to invoke the jurisdiction of the High Court or of this  Court, difficulty sometimes arises because of the nature and extent of  the  right  or  interest which  is  said  to  have  been infringed, and whether the infringement in some way  affects such persons.  On this aspect there is no clear  enunciation of   principles  on  which  the  Court  will  exercise   its jurisdiction. (1) [1952] S. C. R. 696.      (2) [1950] S. C. R. 869. (3) [1952] S. C. R. 28.       (4) [1962] Supp. 3 S. C. R. 1. (5)  [1966] 2 S. C. R. 172. 620 In  England  also the Courts have taken the view  that  when the, application is made by a party or by a person aggrieved

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the Court will intervene ex debito justitias, in justice  to the  applicant, and when it is made by a stranger the  Court considers   whether   the  public   interest   demands   its intervention.   In  either case it is a matter  which  rests ultimately  in  the  discretion of the Court :  (see  R.  v. Thames Magistrates’ Court, ex. p. Greenbaum(1). In  this  case,  however,  the  first  respondent  has   not challenged the grant of the lease on the ground of ex debito justitiae  but  has  done  so on  the  ground  of  a  direct infringement of his right to be granted a mining lease  over 280.62 acres for which the appellant was given a lease along with  other area.  Since it is now found that no such  right of  the first respondent has been affected, he has no  locus standi.   He  is neither a party nor a person  aggrieved  or affected  and  consequently his writ petition  in  the  High Court is not maintainable. On  this short ground, this appeal will be allowed  and  the writ  petition  filed by the first respondent  in  the  High Court  dismissed.   The appellant will have his  costs  only against the State of Bihar. V.P.S.                         Appeal allowed. (1)(1957)  55 L.C.R. 129-extracted in Yardley Source  Book of English Administrative Law, 1970, p. 228). 621