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PETITIONER: SHRIRAM JHUNJHUNWALA

       Vs.

RESPONDENT: THE STATE OF BOMBAY AND OTHERS

DATE OF JUDGMENT: 04/05/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR KAPUR, J.L. SUBBARAO, K. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1962 AIR  670            1962 SCR  Supl. (2) 733  CITATOR INFO :  D          1967 SC1244  (12)

ACT: Mining   lease-Union  Government’s  order  modifying   State Government’s order-If can be quashed by the High Court.

HEADNOTE: The State Government granted mining licence to the appellant over  an  area of 83.18 acres as prayed for by him  but  the Union  Government  modified   the order  and  directed  that licence  for  32 acres out of the whole area  could  not  be granted and the licence should be restricted to the rest  of the area.  The licence for 32 acres was subsequently granted to Respondent No. 3. The appellant then filed an application under Art. 226 of the Constitution for quashing the order of the  Union  Government  granting licence  for  32  acres  to Respondent No. 3 and for issuing directions that licence for that  area be granted to him.  The High Court dismissed  the petition: On appeal by special leave. Held,  that the order of the Union Government could  not  be quashed by the High Court as it did not exercise territorial jurisdiction  over  the Union Government and  the  direction prayed for could not be granted till the order of the  Union Government was set aside.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 236 of 1959. Appeal  by special leave from the judgment and  order  dated February 24, 1956, of the former Nagpur High Court, in Misc. Petition No. 232 of 1954. A.   V.  Viswanatha Sastri, G. J. Ghate and Naunit Lal,  for the appellant. H.   N. Sanyal, Additional Solicitor-General of India,  P.K. Chatterjee and P.M. Sen, for respondents Nos.  1 and 2. B.   P.  Maheshwari, for respondent No 3. 1961.  May 4.  The Judgment of the Court was delivered by RAGHUBAR  -  DAYAL,  J.-This appeal, by  special  leave,  is

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against the order of the High Court 734 of  Judicature  at Nagpur, dismissing the  petition  of  the appellant under Art. 226 of the Constitution. On  August  9,  1950, the appellant  applied  to  the  State Government,  Madhya Pradesh, for the grant of a  prospecting licence  for  manganese ore over an area of  83-1  8  acres, comprising  khasra No. 1 of mouza Seoni Bhondki.  The  State Government granted the prospecting licence for this area  on June  18, 1951 and’ intimated that the  prospecting  licence form  which  was pending approval by the  Union  Government, would be executed in due course. On April 21, 1951, respondent No. 3 applied for the grant of mining lease over 32 acres out of the aforesaid area of  83- 18  acres.   On  October  20,  1951,  the  State  Government informed  him  that  area bad been already  granted  to  the appellant   under  prospecting  licence,  and  it  was   not available to him. On November 26, 1951, respondent No. 3 applied for review to the Union Government under r. 57  of the Mineral  Concession Rules, 1949. On  September  5, 1952, the Union Government  wrote  to  the State  Government  that  its order regarding  the  grant  of prospecting  licence to the appellant over an area of  83-18 acres should be modified to the extent that the area granted under  the prospecting licence be restricted to  the  virgin area  of  51.18  acres, as the area of  32  acres  had  been previously  held  under a mining lease by Messrs  Akbar  Ali Munwar Ali and had not by then been thrown open for regrant. It  was further directed by the Union Government, that  area of 32 acres be thrown open for re-grant.  In consequence  of this direction by the Union Government, the State Government modified  its order dated June 18, 1951, granting the  pros- pecting  licence  to  the  appellant  ’and  restricted  that licence to the virgin area of 51-18 acres only.                             735 Thereafter,  some  time  in April  1953,  applications  were invited  for the grant of mining lease with respect  to  the area  of 32 acres.  The appellant submitted  an  application for the grant of the mining   for    83-18    acres.     The respondent  No. 3 (lid not file any fresh  application.   On April  30, 1954, the Government granted a mining  lease  for manganese ore over an area of’ 51.18 acres and did not grant the lease for the area of 32 acres, stating in its letter to the  Deputy Commissioner that area had been granted to  res- pondent No. 3 tinder mining lease, as directed by the  Union Government, under r. 57 of the Mineral Concession Rules. Sometime  thereafter, on May 17, 1954, the  appellant  filed the petition under Art. 226 of the Constitution in the  High Court,  praying for the quashing of the order of  the  Union Government,  respondent No. 2. Granting 32 acres of area  in dispute  to  respondent  No. 3, by the issue of  a  writ  of certiorari  and  also for the issue of  direction  that  the appellant  was  entitled to the mining lease in  respect  of that area. The  High  Court dismissed this petition,  holding  that  in order  to-give the relief prayed for it was  essential  that the order of’ the Union Government quashed and, as the  High Court could not reach it, it would be incongruous to  direct the  State  Government  to ignore the  order  of  the  Union Government.   It is against this order that this appeal  has been filed. This  appeal has no force.  The prayer in the writ  petition was  for the quashing of the order of the  Union  Government granting  32 acres of area in dispute, to respondent No.  3,

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by  issue  of a writ of certiorari and for the  issue  of  a direction that the, applicant was entitled to a mining lease in  respect of the said area of 32 acres.  The order of  the Union Government could not 736 be  quashed  by  the High Court of Bombay,  as  it  did  not exercise territorial jurisdiction over the Union Government. The  High  Court could not issue the directions  prayed  for even  if it could issue such a direction till the  order  of the  Union Government granting the mining lease of 32  acres to respondent No. 3 was set aside. In  this view of the matter, it is unnecessary  to  consider the  points  urged for the appellant that the order  of  the Union  Government was not an order within  its  jurisdiction inasmuch  as  it  passed it without issuing  notice  to  the appellant or affording him an opportunity to be heard on the review application filed by respondent No. 3. The  question, in this form, was not raised before the High Court and if it had  been  raised,  it  would  not  have  been  within   the jurisdiction of the High Court to interfere with it. It  has  also been urged that the Union  Government  had  no jurisdiction to pass the order dated April 7, 1954, under r. 57 of the Rules when, in fact, no application for- review by respondent No. 3 was pending before it, as the review appli- cation  filed by respondent No. 3 on November 26, 1951,  had been  disposed  of by the Union Government on  September  5, 1952.   The  review application, however, Was  not  in  fact finally disposed of by the letter from the Union  Government to  the  State Government, dated September  5,  1952.   That letter asked the State Government to reduce the area of  the prospecting licence granted to the appellant to 51.18  acres and  to  throw open for re-grant the remaining  area  of  32 acres.  The letter convened no order of the Union Government about the way in which the Union Government was disposing of the  review  application.   It is  clear  from  the  several letters  on record that the Union Government  never  treated the  review proceedings before it to have been disposed  of. Respondent No. 3 was informed by those letters                             737 that  the matter was under consideration.  It  is  therefore not  correct  to say that there was  no  review  application pending with the Union Government on April 7, 1954, when  it passed  the  order  cancelling  the  orders  of  the   State Government  dated October 20, 1951, and directing the  State Government to grant a mining lease for manganese ore over an area  of  32  acres to respondent No.  3,  provided  he  was otherwise eligible. The  State Government, as urged for the appellant,  has  the power, under the Rules, to grant the mining lease.  But  its granting  such a lease is subject to the orders on a  review by the Union Government. Its order is final, subject to  the order of the   Union Government.  When the’ Union Government directed  the  grant of the mining lease for an area  of  32 acres to respondent No. 3, the State Government had to order such  grant, in accordance with the directions of the  Union Government.   In fact, at that stage, the  State  Government only  effectuates  the order of the  Union  Government.   It carries  out that order which remains the final order.   The contention  that  the effective order is ultimately  of  the State  Government and therefore can be quashed by  the  High Court is not open to the appellant. The  appeal has therefore no force and is  hereby  dismissed with costs. Appeal dismissed. 738

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