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522 D. N. KOY AND !'. K. BANNERJEE AND ORS. v. STATE OF BIRAK AND ORS. September 30, 1970 (J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ,J Mineral Concession . Rules, 1960, rr. 54, 55-Disµosal of applica sion-exercise of Suo-motu powers-Whether can be donewithout affarJ. i'ng opportunity. The respondent-Stategranted a mininglease to the appellant.The 5th respondent, whose application was rejecteQ_ moved the Cl!ntral Gov ernmentunder rule 54 of theMineralConcessionRules, 1960, praying (i)for settingaside the grantin favourof theappellant, and(ii) for grantof theareaon leaseto him.The Central Gov ernment askedf9r the commentsof theappellantand the State Govern- mentand afterreceipt of thesecomments,they were passedto the partiesfor further co_mments. TheCentralGovernment by an order passedon Sept.30,1964rejected the applicationof 5threspondent as time-barred.Thereafter, the CentralGovernmenton Nov. 5, 1964, under therevisionarypowers conferred by r. 55, of theRulesand "all the powersenablingin this behalf," setasidethe ordergranting the lease to theappellant,and furtherdirectedregrant after issuingfreshnotifica- tion.The appellant,moved the HighCourtunder Art. 226 ofthe Constitutionfor quashingthe orderof November,1964, The HighCourt dismissedthe , petition. HELD: Theappeal as well as the WritPetitionmust be a)lowed andthe order cf the CentralGovernmentNov. 5, 1964 must be set aside. The }ligh Courterred in itsapproachthat the two prayersin the applicationof the5threspondent wefe independent,and that the Central Government by itsorder of Sept. 30,1964had disposedof only.the prayer of 5th respondentto grantthe areaon lease to him,but it hadnot disposed of his otherprayerto cancelthe grantin favour of theappellant;The tworeliefsasked for by the 5threspondentwere inter-connectedreliefs. Jn the contextin whiCh they weremad,they couldnot be considered as independentprayers. Further by its orderdatedSeptember30. 1964, theCentralGovernmentdismissed the entire·applicationof the 5th res pondent on the ground that the same was time-barred.If his applica tion in respect of onepart of his prayer was time-barred, it v.'as equally time-barred in respect of t"" otherpart . .[527 B-0] Theorder of Nov. 5, 1964 of the CentralGovernment does u.ot show that it was made in the exercise of its suomotu powers.It is ·purported to havebeen madeon the basis of the applicationmade by the 5th respondent.[527 El B c D E F G If the CentralGovernmentwanted to exerciseits suomotupower ll it shouldhave intimatedthat fact as well as the groundson which it proposedto exercisethat powerto theappellantand givenhim .an oppor tunityto showcauseagainst the exercise of suo motu power as well as I D. N. ROY v. BIHAR (Hegde, J.) 523 A against the groundson whichit wantedto exerciseits poiNer. The Central Government had not given him thatopportunity.Failure of the Central Governmentto doso,vitiatesthe impugnedorder. L527 H] B CIVIL APPELLATE JURISDICTION; Civil AppealNo. 1908 ot 1968. Appeal from thejudgmentand decr.eedated August 9, 1966- of the Patna HighCourt in Misc.JudicialCase No. 1665 of 1964. M. C. Chagla, Kai/ash Mehta al!ld A. K. Nag, for the appel lants. C Jagadish Swarup, Solicitor-General and R. C. Prasad, for D E F G B respondentsNos. 1, 3 and 4. V. A. Seyid Muhammad and S. P. Nayar, forrespondent No.2. TheJudgment of the Courtwas deliveredby Hegde, J. On June24, 1959,the DeputyCommissioner Santai Parganascaused a noticedated June 20, 1959 published intheBiharGazette in accordancewith the provisionsof Rule6 7 oftheMineralConcessionRules, 1949, of the availability for regrantof mining rights in respectof fireclay over thewhole of villagePalasthaliNo. 39, situatein Thana Nala, BlockKasta, Sub-DivisionJamtara in theDistrictof Santai Parganas. He announcedin thatnoticethat the saidareawill be availablefor regrantwith effectfrom August l, 1959and invitedapplications forgrantof mininglease in respectof thatareain accordance withthe provisionsof MineralConcessionRules, 1949.The appellant,a partnershipfirm appliedfor thatlease on June24, 1959itself.Thereafterother personsincludingthe Sth respon- dentNankhu Singh also appliedfor obtainingthe leasein ques- tion.The State Governmentof Bihargrantedthe leaseto the appellant on March31, 1962. In pursuanceof thatgranta writtenagreementwas enteredinto . betweenthe State Govern- mentand the appellant and the samewasdulyregistered. The Stllte Governmentrejected the applicationsof the other applicants. Even duringthe pendencyof theapplicationsbefore the State Government,-the 5th respondentmoved the Central Goverqpient underrule 54 of theMineralConcessionRules, 1960 which had replacedthe 1949 R•1les. Thereinhe prayedthat the- ·grant of the leasein favourof theappellant, if it !:ad been made,should be cancelledand thathe shouldbe grantedthe minerallease in question. The Central Governmentserved a copyof thatpetition on the appellantand calledfor its comments. At th~ sametime itcalledfor thecommentsof the State Governmentas well.After 524 SUPREME COURT REPORTS [1971] 2 S.C.R. receiving the comments of the State Government, the same were A passed 'on to the appellant as well as to the 5th respondentand theirfurthercomments were called for. After examining the representation made by the parties and the comments offered by the StateGovernment, the Central Governmen,t dismissed the petitionmade by the 5th respondent on September 30, 1964.The I Order of the Central Governmentreads thus : B From To "GOVERNMENT OF JNDIA MINISTRY OF STEEL & MINES, (Departmentof Mines and Metals), No. MV-1 (569)/61 NewDelhi,the 30th September, 1964 Shri A Nabar, UnderSecretary to the Government of India. ~hri Nankhu Singh, . P.O. Churulia, Distt.Burdwan(West Bengal) Subject : Applicationunder rule 54 of the Mineral Concession Rules, 1960 in respect of Mininglease for fire-clayover 248 acres in Mouza Palasthali, P.S. Na/a, Distt. Santai Parganas. Sir, I am directed to refer to your applicationdated 17-10-1961 on the above subjectand to say that aftercarefulconsideration the Central. Government'hereby reject your revisionapplication as c E F beingtime-barred.G Yours faithfully, Sd./-A.Nabar, Under Secretary to the Governmentof India." Thereafter the .Central Governmentpassed a furtherorder .onH November 5, 1964 andthatorderreads thus : Registered AID A B From p, N. ROY v. BIHAR (Hegde, J.) "GOVERNMENT OF INDIA MINISTRY OF STEEL AND MINES (Departmentof Minesand Metals) No. MV-1(569)/61 525 New Delhi, the 5th November, 1964. Shri H. S. Sahni, Under Secretaryto theGovernmentof India. C To D E F G H The Secretary to the Governmentof Bihar, Departmentof Minesand Geology, Patna. Subject: Revisionapplication under rule 54 of the Mineral Concession Rules, 1960 from Shri Nankoo Singh relatir1g to Mining /ease for Fire-clay over 248 acres in Santai Pargana District. Sir, In continuationof thisMinistry'sletter of evennumberdated 30-9-1964on theabovesubject,I amdirectedto saythatsince no· entryin thestandardregister was made as required under formerrule 67 of theMineralConcessionRules, 1949, the area couldnot havebeen held to be availableand the fourapplications (referredto inpara2 oftheStateGovernment'sletter No. 3181/ M, dated9-6-1962)would be deemed to be prematureandshould havebeen re.iected on thatgroundalone. Everi assumingthat the notification was valid,the firsttwo applicationswere prematureunder rule 68 andon thatground shouldhave beenrejected.Apart from this the applicationof M/s. D. N. Roy and S. K. Bannerjee was deemed to be rejected ontheexpiryof 9 monthsfrom the dateof receiptof application i.e., 24-3-1960.The partydid not comeup in revision.The application,therefore, ceased to exist and the orderof the State Governmentgranting the ·lease to this partyon 31-3-1962 was withoutjurisdiction.The grantand consequentexecution of the Mininglease are therefore,void. In view of thepositionexplainedabove the Central Govern mentin exerciseof theirrevisionarypower conferredby Rule 55 of MineralConcessionRules, J 960 and all otherpowersenabling inthisbehalfherebyset asidethe orderof theStateGovernment ccntainedin theirletterNo. A/MM/4031/62-1789M, d11ted 526 SUPREME COURT REPORTS [1971 J 2 S.C.R. 31-3-1962(mentionedin State Government'sletter No. A/MM- 4031/62-3181/M,,dated 9-6-1962)granting Mining lease to M/s. D. N. Roy and S. K. Banerjeeand furtherdirect them to throughopen the areaagainunderRule 58 (I) of Mineral Con cessionRule 1960 for regrant.The notificationshould clearly indicatethe datefromwhichthe areacould be availablefor re grant and the date by whichthe petitionersshould submittheir applicationsfor mineralconcession. 4. M/s. D. N. Roy and S. K. Banerjee are beinginformed. Yours faithfully, Sd./- H. S. Sahni Under Secretary to theGovernmentof India. Copyforwarded to M/s. D. N. Roy and S. K. Banerjeevillage and P. 0. Churulia,Distt. Burdwan(West Bengal) with reference totheirletterda(ed12-6-1963. Sd. / - H. S. Sahni Under'Secretary to the Governmentof India." Aggrieved by this orderthe appellant moved the Patna High Courtunder Art. 226 of the Constitution to quashthe orderof theCentralGovernmentdated November 5; 1964 (which will hereinafterbe referred to as the 'impugnedorder'). The High Court dismissed its petition. As againstthe orderof theHigh Courtthe, appellant has broughtthis appealafter obtaining certi ficateof fitness from the High.Court. c D E F It was urgedbeforethe High Court that the Government havingpassed the final order on September 30, 1964,it hadno powerto reviewits own ·order and make any furtherorder. Admittedlythere is no provisionunder the Mines and Minerals (Regulationand Development)Act, 1957or underthe Mineral ConcessionRules, 1960 empoweringthe CentralGovernmentto review its order. The HighCourt did not holdthat the Central Governmenthad any powerto review its own order either under. G theMinesand Mineral(Regulationand Development)Act, 1957 orunderthe MineralConcessionRules. It upheldthe Central Government'sorder on two groundsnamely that the orderdated September 30, 1964 is nota completeorder as it did not dispose oftheapplicationmade by the 5threspondentcompletely and secondlythe CentralGovernmenthad suo moto powerto review the orderof the State Governmentunder s. 30 of the Mines and Miner.als (Regulationand Development)Act, 1957.These con clusions of theHighCourt were assailedbefore us. H A B c D EF G H D. N. ROY v. B!HAR (Hegde, /.) 527 In hisapplicationunder rule 54 of theMineral Concession Rules, 1960, the 5threspondentprayed for (i) setting aside the · grant madein favourof the appellant and (ii) grantthe area in questionon leaseto him.The High Courtthoughtthat theseare twoindependentprayers. In its viewthe CentralGovernment byits orderdatedSeptember 30, 1964 had disposed of onlythe prayerof the5threspondentto grant the areaon leaseto him but it hadnot disposedof hisfirstprayernamely to cancelthe grantin favourof theappellant. In ouropinionthis is an in correct approach.The two reliefsasked for by the5th respon dentwereinter-connectedreliefs. 1n the context in whichthey weremade,they cannotbe considered as independentprayers. No grant in hisfavourcould have beenmadewithoutfirst setting asidethe grantmadein favourof theappellant.Therefore the firstreliefaskedfor by the5threspondent is a necessary condi tionprecedentfor a grantin hisfavour.Further by its order datedSeptember 30, 1964,the CentralGovernmentdismissed the entireapplication of the 5threspondenton the gr01~nd that the same was time-barred. If his.applicationin respectof one part ofhisprayer was time-barred, it was equallytime-barred in respect of the otherpart. Theimpugnedorder of theCentralGovernmentdoes not show that it was madein theexerciseof its suomoto power. It is purpotedto havebeenmadeon thebasisof theapplication' madeby the5threspondentunder rule 54 of theMineral Con cession Rules, 1960. In paragraph3 ofthatorderit says "in view ofthepositionexplainedabove the CentralGovernmentin exer cise of theirrevisionarypower conferredby Rule 55 of Mineral ConcessionRules, 1960 and all otherpowersenablingin this. behalf herebyset asidethe orderof the State Government con tainedin theirletterNo. A/MM/4031/62-1789M, datedMarch 31, 1962". It is truethat the orderin questionalso refers to "all other powersenablingin thisbehalf'.But in itsreturn to thewrit petitionthe CentralGovernmentdid notpleadthat the impugned orderwas passedin exerciseof its suomoto powers.We agree· that if theexerciseof a powercan be tracedto anexistingpower eventhoughthat powerwas not purportedto havebeenexercised, undercertaincircumstances,the exerciseof thepowercan be upheld on thestrengthof anundisclosedbut undoubtedpower. Butin thiscasethe difficultyisthat at nostagethe Central Gov ernmentintimatedto theappellantthat it was exercising its suo moto power.At all stagesit purported to actunderrules 54 and 55 of the MineralConcessionRules, 1960. If the Central Governmentwanted to exerciseits suo moto powerit shouldhave intimatedthat fact as well as the groundson whichit proiiosed to 528 SUPREME COURT REPORTS [1971] 2.s.C.R. .exercise that powerto the appellanrand given him anopportunity .to showcauseagainstthe exerciseof suo moto poweras well as .againstthe groundson which it wantedto exerciseits power. Quiteclearlythe CentralGovernmenthad not givenhim that opportunity;The HighCourtthoughtthat as the CentralGovern menthad not onlyintimatedto theappellantthe groundsmen tionedin the applicationmade by the5threspondentbut also thecommentsof the State Government,the appellanthad ade .quateopportunityto putforwardhis case.This conclusionin .ourjudgment is untenable.At no stagethe appellant was in formed that· theCentral a.1vernmentproposed to exerciseits suo mato power and askedhim to show causeagainstthe exercise ofsucha power. Failureof theCentralGovernmentto do so, inouropinion,vitiates the impugnedorder. For the reasonsmentionedabove we allow this appeal as well as the writpetitionand set asidethe impugnedorder. Central Government shal! paythe costs of theappellantin this Court as well as in theHighCourt. Y.P. Appealand petition allowed. A B c |
