25 October 1951
Supreme Court
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THE STATE OF ORISSA Vs MADAN GOPAL RUNGTA.THE STATE OF ORISSAV.ARJUN LADHA.THE ST

Bench: KANIA, HIRALAL J. (CJ),SASTRI, M. PATANJALI,MUKHERJEA, B.K.,DAS, SUDHI RANJAN,AIYAR, N. CHANDRASEKHARA
Case number: Appeal (civil) 300-304 of 1951


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PETITIONER: THE STATE OF ORISSA

       Vs.

RESPONDENT: MADAN GOPAL RUNGTA.THE STATE OF ORISSAV.ARJUN LADHA.THE STAT

DATE OF JUDGMENT: 25/10/1951

BENCH: KANIA, HIRALAL J. (CJ) BENCH: KANIA, HIRALAL J. (CJ) SASTRI, M. PATANJALI MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION:  1952 AIR   12            1952 SCR   28  CITATOR INFO :  F          1962 SC1044  (5)  R          1962 SC1305  (22)  R          1964 SC 685  (10)  R          1965 SC 745  (137)  R          1966 SC1441  (4)  E          1968 SC 733  (9,10)  RF         1973 SC2720  (9)  RF         1975 SC2238  (19)  F          1976 SC 578  (33)  RF         1980 SC 962  (59)  F          1983 SC1272  (10)

ACT:     Constitution  of  India, Art. 226--Writs  granting  more interim  relief  pending institution of civil  suit  without deciding rights of parties--Legality.

HEADNOTE:     The High Court cannot make a direction under Art. 226 of the Constitution for the purpose of granting interim  relief only  pending the institution of a suit merely  because  the suit  could not be instituted until after the expiry  of  60 days  from the date of a notice under Sec. 80 of  the  Civil Procedure Code and in the meanwhile, unless protected by the Court the applicant may suffer irreparable loss.     Even  though  writs  can be issued under  Art.  226  for purposes  other than the enforcement of fundamental  rights, the  concluding words of the article have to be read in  the context  of what precedes the same, and the existence  of  a right  is the foundation of the exercise of jurisdiction  of the Court under this article.     An interim relief can be granted only in aid of, and  as ancillary to, the main relief which may be available to  the party  on  final determination of his rights in  a  suit  or proceeding. 29

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JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Cases Nos. 300 to 304  of 1951.     Appeals  under Art. 132(1) of the Constitution of  India from  a. judgment dated 2nd August, 1951, of the High  Court of  Judicature  at Orissa (Ray C.J. and  Narasimham  J.)  in Miscellaneous   Judicial  Cases Nos. 126, 127, 128, 129  and 130 of 1951.     M.C. Setalvad, Attorney-General for India (G. N.  Joshi, with him) for the appellant in all the appeals.     N.C.  Chatterjee (H.J. Umrigar and A.N. Roy,  with  him)    for the respondent in Case No. 300 of 1951.     Roshan  Lal  for the respondents in Cases Nos.  301  and 304.     N.C. Chatterjee (A. N. Roy, with him) for the respondent in Case No. 302 of 1951.   N.C.  Chatterjee (A. N. Roy and A.N. Sinha, with him)  for the respondent in Case No. 303 of 1951.     1951.  October  25.  the  Judgment  of  the  Court   was delivered by     KANIA  C.J.--These are five companion appeals  from  the judgment  of  the High Court at Orissa,  delivered  on  five petitions filed by the respondent in each of the appeals, to obtain  from the Court a writ of mandamus and/or  directions under article 226 of ’the Constitution of India.     Each  of the respondents alleged that between  1941  and 1947  he  had agreed to take from the Ruler  of  Keonjhar  a mining  lease and had entered into possession of  the  area. Some of the petitioners alleged that they had spent money on the development of the mines and installed machinery to work the  same.   It is however common ground that there  was  no registered lease in favour of any of the respondents  before 1947.   On  the 14th December, 1947, the Ruler  of  Keonjhar entered  into a merger agreement with the Dominion of  India and  as from the 1st January, 1948, the State was merged  in the  Dominion of India. After signing the  merger  agreement the Ruler gave registered 30 leases  on  the 27th December, 1947, to the  respondents  in these  appeals.  In pursuance of the exercise of the  powers conferred  on the Government of Orissa by section 4  of  the Extra Provincial Jurisdiction Act, 1949, read with Notifica- tion No. 172/1B dated 23rd March, 1948, of the Government of India, the Government of Orissa issued a notification  dated the  8th  of  June, 1949, declaring, inter  alia,  the  said leases to be void and not binding on it. This annulment  was made expressly on the ground that these commitments were not reasonable and bona fide. Thereafter, the respondents, along with  others approached the Orissa Government to  give  them leases and the State Government gave them temporary  permits to work the mines in November, 1949.  On the 3rd July, 1951, however  they passed an order cancelling the temporary  per- mits  and  directed the respondents to remove  their  assets appertaining to the respective mines within a fortnight. The respondents thereupon filed the petitions before the  Orissa High Court praying for writs or directions in the nature  of mandamus  against  the  State of Orissa  directing  them  to withdraw the notices dated the 8th of June and 3rd of  July, 1951,  and to forbear from acting upon or giving  effect  to the same.     The  Court, after noticing the rival contentions of  the parties  and  rejecting  the contention that  the  State  of Orissa had cancelled the permits and were attempting to take possession  as an act of State, posed the question  "whether the law of annulment relied upon by the State was applicable

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to  the mining leases granted to the petitioners, or in  the alternative,  whether  the  State had any right  in  law  to cancel  the  leases before the  period  mentioned  therein." Referring  to  the contention of the State  rounded  on  the acceptance  by the respondents of the temporary permits  and the  estoppel  arising therefrom, Ray C.J. in  his  judgment stated  as follows :--"In determining the validity  of  this contention  (relating to the temporary permit  and  estoppel arising  therefrom)  the  circumstances  under  which  these applications  were made and the legal implications  of  such applications and the permissions granted under 31 them  will  have  to be considered. It is  remote  from  our intention to express any opinion in this summary  proceeding as  to the respective merits of the rival contentions. I  am however  satisfied that in the context of events and in  the logic of circumstances attending thereto there is a case  to be  tried."  He  next considered the scope of  the  writ  of mandamus and came to the conclusion that "at the moment" the respondents had no alternative legal remedy, equally conven- ient, beneficial and effectual because the respondents could not file a suit till after the expiry of the period of sixty days required for the purpose under section 80 of the  Civil Procedure  Code and he thought that unless protected by  the Court in the meanwhile the respondents would undergo irrepa- rable  and  irremediable loss of possession  of  the  mining leases involving a huge waste of labour, machinery and other resources  of equipments of immense value hardly capable  of being  remedied by payments of money as  compensation.   The Bench  therefore passed an order dated 2nd August, 1951,  as follows  :--"We direct that till three months from today  or one  week  after  the institution  of  their  (respondents’) contemplated  suit, whichever is earlier, the Government  of the  State  of  Orissa should refrain  from  disturbing  the petitioners’  possession over the mining areas  in  question and  that thereafter this order will cease to have  effect." They gave further directions as to how the mines were to  be worked during the aforesaid period.  Towards the end of  the judgment  it was stated, "In the result, the  petitions  are allowed  in  part to the limited  extent  indicated  above." Narasimham J. agreed with the order set out in the  judgment of the Chief Justice although his judgment shows the concur- rence  to be very halting.  He stated that although  he  was reluctant  to exercise the powers under article 226  because the present respondents could file a suit, yet as in view of section  80  of the Civil Procedure Code there would  be  an unavoidable  delay  resulting  in irreparable  loss  to  the respondents  he  agreed that the order should be  passed  as mentioned in the judgment of the Chief Justice, 32 Towards  the end of his judgment he stated  as  follows:-"It should  however be clearly emphasized that the  observations contained in this judgment should not be taken as  pre-judg- ing  any question which may.arise for the  consideration  of the  Civil  Court in the event of the petitioners  filing  a regular  suit and seeking interim relief from that Court  by way  of  temporary injunction, appointment  of  receiver  or otherwise.  If such an application is made, the questions as to whether the petitioners have a prima facie case for trial or  whether such a suit is maintainable or whether the  bal- ance  of convenience requires that they should be  permitted to  remain in possession of the leasehold property till  the termination of the suit and other allied matters should  all be  dealt with by the Court concerned without  being  influ- enced  in  any  way by the observations  contained  in  this

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judgment.  Those observations have been made for the limited purpose  of granting temporary relief under article 226  and are  not intended to embarrass either party or the Court  in future litigation."     It  appears that thereafter an application was  made  to stay the operation of this order to enable the Government of Orissa  to  appeal against the order of the 2nd  of  August. The same Judges on the 6th of August stayed the operation of the  order for fifteen days and observed as follows  :--"The effect  of  the order (of 2nd August, 1951) is  that  except giving  them  (respondents in these  appeals)  some  interim measure of relief for the period during which the  petition- ers were without remedy, we were not inclined to accept  the petition  and  issue a writ in the nature  of  mandamus,  as prayed  for."  The State of Orissa has come on appeal to  us and after hearing the arguments on both sides we came to the conclusion  that  the order of the High Court could  not  be sustained.  We accordingly passed the following order on the 15th  of  October: "These five appeals are allowed  and  the order  of the High Court is set aside in each case.  As  the High Court has passed no other orders on the petitions.  and indeed has stated that the Court was not prepared to 33 pass any ,other orders on the petitions, the petitions stand dismissed.   The respondents will pay the costs of  the  ap- peals.  We shall give our reasons later on." Our reasons are these:     Article  ,226 of the Constitution of India runs as  fol- lows:--     226.  (1)"Notwithstanding anything in article 32,  every High  Court shall have power, throughout the territories  in relation to which it exercises jurisdiction, to issue to any person  or  authority, including in  appropriate  cases  any Government,  within those territories directions, orders  or writs,  including  writs  in the nature  of  habeas  corpus, mandamus,  prohibition, quo warranto and certiorari, or  any of them, for the enforcement of any of the rights  conferred by Part III and for any other purpose.     (2)  The power conferred on a High Court by  clause  (1) shall  not  be in derogation of the power conferred  on  the Supreme Court by clause (2) of article     The  language of the Article shows that the  issuing  of writs or directions by the Court is not rounded only on  its decision that a right of the aggrieved party under Part  II1 of  the   Constitution  (Fundamental Rights)  has  been  in- fringed.  It can also issue writs or give similar directions for any other purpose.  The concluding words of article  226 have  to be read in the context of what precedes  the  same. Therefore  the existence of the right is the  foundation  of the  exercise of jurisdiction of the Court under this  Arti- cle.   The judgment of the Orissa High Court  under  appeal, however,  shows that the Judges have decided nothing at  all in  respect of the rights of the parties.  Indeed they  have expressly  stated that their observations should not in  any way  be considered as deciding any of the rights or  conten- tions  of  the parties raised in the petitions.   The  whole judgment shows that because of the requirement of section 80 of  the Civil Procedure Code the present  respondents  could not  file a suit against the Government for at  least  sixty days, the       5 34 respondent’s  position  should not in the interval  be  dis- turbed and accordingly the Court gave the directions  in its order  of the 2nd of August, 1951.  If there was  any  doubt

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about  the nature  of the  relief  desired to be granted  by the  order of 2nd August the same Judges have made  it  per- fectly  clear by their order of the 6th of  August,  wherein they have stated that except for these directions they  were not prepared to make any other order on the petitions.   The result therefore is that while the Judges declined to inves- tigate  and pronounce on the rights of the parties  and  ex- pressly  kept the determination thereof in abeyance  in  the suit  proposed to be filed by the present respondents,  they gave directions for interim relief till such suit was filed. It  must be noted that with the passing of the order of  the 2nd  August,  1951, containing directions in the  nature  of interim relief the petitions were completely disposed of and have  not been kept pending for disposal.  Those  directions embody  therefore  the final order passed by  the  Court  on these  petitions.  A preliminary objection was raised  about the  maintainability  of the appeals on the ground  that  no final  orders were passed on the petitions.  That  objection must  fail  in view of the fact that with these  orders  the petitions  were  disposed  of finally  and  nothing  further remained  to be done in respect of the petitions.  The  fact that  the operation of the order is limited to three  months or  a  week after the filing of the intended suit  does  not prevent the order from being final.    On  behalf of the appellant it was urged that  the  Court had  no jurisdiction to pass such orders under  article  226 under  the  circumstances of the case. This is  not  a  case where the Court before finally disposing of a petition under article 226 gave directions in the nature of interim  relief for the purpose of maintaining the status quo., The question which  we  have to determine is whether  directions  in  the nature of interim relief only could be granted under article 226, when the Court expressly stated that it refrained  from determining the rights of the parties on which a writ 35 of mandamus or directions of a like nature could be  issued. In  our opinion, article 226 cannot be used for the  purpose of giving interim relief as the only and final relief on the application  as  the High Court has purported  to  do.   The directions  have  been  given here only  to  circumvent  the provisions of section 80 of the Civil Procedure Code, and in our opinion that is not within the scope of article 226.  An interim  relief can be granted only in aid of and as  ancil- lary to the main relief which may be available to the  party on  final determination of his rights in a suit or  proceed- ing.  If the Court was of opinion that there’ was  no  other convenient  or adequate remedy open to the  petitioners,  it might  have proceeded to investigate the case on its  merits and  come to a decision as to whether the  petitioners  suc- ceeded in establishing that there was an infringement of any of  their  legal  rights which entitled them to  a  writ  of mandamus  or  any  other directions of a  like  nature;  and pending  such  determination it might have made  a  suitable interim order for maintaining the status quo ante.  But when the  Court declined to decide on the rights of  the  parties and  expressly  held that they should be  investigated  more properly  in a civil suit, it could not, for the purpose  of facilitating the institution of such suit, issue  directions in the nature of temporary injunctions, under article 226 of the  Constitution.  In our opinion, the language of  article 226  does not permit such an action.  On that  short  ground the judgment of the Orissa High Court under appeal cannot be upheld..                           Appeals allowed.     Agent for the appellant in all the appeals: P.A. Mehta.

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   Agent for the respondent in Case No. 300 : S.P. Varma.     Agent  for  the respondent in Cases Nos.  301  and  304: Ganpat Rai.     Agent for the respondent in Cases Nos. 302 and 303: P.K. Chatterjee. 36