# D. N. KOY AND !'. K. BANNERJEE AND ORS v. STATE OF BIRAK AND ORS

- **Citation:** [1971] 2 S.C.R. 522
- **Court:** Supreme Court of India
- **Decided:** 1970-09-30
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-n-koy-and-k-bannerjee-and-ors-v-state-of-birak-and-ors-5165
- **Pages:** 7

## Headnote

Mineral Concession . Rules, 1960, rr. 54, 55-Disμosal of applicasion-exercise of Suo-motu powers-Whether can be done without affarJ.
i'ng opportunity.
The respondent-State granted a mining lease to the appellant.
The
5th respondent, whose application was rejecteQ_ moved the Cl!ntral Government under rule 54 of the Mineral Concession Rules, 1960, praying
(i)
for setting
aside
the
grant in
favour of
the
appellant,
and (ii) for grant of the area on
lease to him. The Central
Government asked f9r the comments of the appellant and the State Government and after receipt of
these comments, they
were passed to the
parties for further
co_mments. The
Central Government by an order
passed on Sept. 30, 1964 rejected the application of 5th respondent as
time-barred. Thereafter, the Central Government on Nov. 5, 1964, under
the revisionary powers conferred by r. 55, of the Rules and "all
the
powers enabling in this behalf," set aside the order granting the lease to
the appellant, and further directed regrant after issuing fresh notification.
The appellant, moved the High Court under Art. 226 of
the
Constitution for quashing the order of November, 1964, The High Court
dismissed the , petition.
HELD : The appeal as well as the Writ Petition must be a)lowed
and the order cf the Central Government Nov. 5, 1964 must be set aside.
The }ligh Court erred in its approach that the two prayers in the
application of the 5th respondent wefe independent, and that the Central
Government by its order of Sept. 30, 1964 had disposed of only .the prayer
of 5th respondent to grant the area on lease to him, but it had not disposed
of his other prayer to cancel the grant in favour of the appellant; The
two reliefs asked for by the 5th respondent were inter-connected reliefs.
Jn the context in whiCh they were mad, they could not be considered
as independent prayers. Further by its order dated September 30. 1964,
the Central Government dismissed the entire· application of the 5th respondent on the ground that the same was time-barred.
If his application in respect of one part of his prayer was time-barred, it v.'as equally
time-barred in respect of t"" other part . .[527 B-0]
The order of Nov. 5, 1964 of the Central Government does u.ot show
that it was made in the exercise of its suo motu powers.
It is ·purported
to have been made on the basis of the application made by the 5th
respondent. [527 El
B
c
D
E
F
G
If the Central Government wanted to exercise its suo motu power
ll
it should have intimated that fact as well as the grounds on which it
proposed to exercise that power to the appellant and given him .an opportunity to show cause against the exercise of suo motu power as well as
I
D. N. ROY v. BIHAR (Hegde, J.)
523
A
against the grounds on which it wanted to exercise its poiNer. The Central
Government had not given him that opportunity. Failure of the Central
Government to do so, vitiates the impugned order. L527 H]
B

## Text

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 applicasion-exercise of Suo-motu powers-Whether can be done without affarJ.
i'ng opportunity.
The respondent-State granted a mining lease to the appellant.
The
5th respondent, whose application was rejecteQ_ moved the Cl!ntral Government under rule 54 of the Mineral Concession Rules, 1960, praying
(i)
for setting
aside
the
grant in
favour of
the
appellant,
and (ii) for grant of the area on
lease to him. The Central
Government asked f9r the comments of the appellant and the State Government and after receipt of
these comments, they
were passed to the
parties for further
co_mments. The
Central Government by an order
passed on Sept. 30, 1964 rejected the application of 5th respondent as
time-barred. Thereafter, the Central Government on Nov. 5, 1964, under
the revisionary powers conferred by r. 55, of the Rules and "all
the
powers enabling in this behalf," set aside the order granting the lease to
the appellant, and further directed regrant after issuing fresh notification.
The appellant, moved the High Court under Art. 226 of
the
Constitution for quashing the order of November, 1964, The High Court
dismissed the , petition.
HELD : The appeal as well as the Writ Petition must be a)lowed
and the order cf the Central Government Nov. 5, 1964 must be set aside.
The }ligh Court erred in its approach that the two prayers in the
application of the 5th respondent wefe independent, and that the Central
Government by its order of Sept. 30, 1964 had disposed of only .the prayer
of 5th respondent to grant the area on lease to him, but it had not disposed
of his other prayer to cancel the grant in favour of the appellant; The
two reliefs asked for by the 5th respondent were inter-connected reliefs.
Jn the context in whiCh they were mad, they could not be considered
as independent prayers. Further by its order dated September 30. 1964,
the Central Government dismissed the entire· application of the 5th respondent on the ground that the same was time-barred.
If his application in respect of one part of his prayer was time-barred, it v.'as equally
time-barred in respect of t"" other part . .[527 B-0]
The order of Nov. 5, 1964 of the Central Government does u.ot show
that it was made in the exercise of its suo motu powers.
It is ·purported
to have been made on the basis of the application made by the 5th
respondent. [527 El
B
c
D
E
F
G
If the Central Government wanted to exercise its suo motu power
ll
it should have intimated that fact as well as the grounds on which it
proposed to exercise that power to the appellant and given him .an opportunity to show cause against the exercise of suo motu power as well as
I
D. N. ROY v. BIHAR (Hegde, J.)
523
A
against the grounds on which it wanted to exercise its poiNer. The Central
Government had not given him that opportunity. Failure of the Central
Government to do so, vitiates the impugned order. L527 H]
B
CIVIL APPELLATE JURISDICTION; Civil Appeal No. 1908 ot
1968.
Appeal from the judgment and decr.ee dated August 9, 1966of the Patna High Court in Misc. Judicial Case No. 1665 of
1964.
M. C. Chagla, Kai/ash Mehta al!ld A. K. Nag, for the appellants.
C
Jagadish Swarup, Solicitor-General
and R. C. Prasad, for
D
E
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G
B
respondents Nos. 1, 3 and 4.
V. A. Seyid Muhammad
and S. P. Nayar, for respondent
No. 2.
The Judgment of the Court was delivered by
Hegde, J. On June 24, 1959, the Deputy Commissioner
Santai Parganas caused a notice dated June 20, 1959 published
in the Bihar Gazette in accordance with the provisions of Rule 6 7
of the Mineral Concession Rules, 1949, of the availability for
regrant of mining rights in respect of fireclay over the whole of
village Palasthali No. 39, situate in Thana Nala, Block Kasta,
Sub-Division Jamtara in the District of Santai Parganas.
He
announced in that notice that the said area will be available for
regrant with effect from August l, 1959 and invited applications
for grant of mining lease in respect of that area in accordance
with the provisions of Mineral Concession Rules, 1949.
The
appellant, a partnership firm applied for that lease on June 24,
1959 itself.
Thereafter other persons including the Sth respon--
dent Nankhu Singh also applied for obtaining the lease in question.
The State Government of Bihar granted the lease to the
appellant on March 31, 1962.
In pursuance of that grant a
written agreement was entered into . between the State Government and the appellant and the same was duly registered. The
Stllte Government rejected the applications of the other applicants.
Even during the pendency of the applications before the State
Government, -the 5th respondent moved the Central Goverqpient
under rule 54 of the Mineral Concession Rules, 1960 which had
replaced the 1949 R•1les.
Therein he prayed that the- ·grant of
the lease in favour of the appellant, if it !:ad been made, should
be cancelled and that he should be granted the mineral lease in
question. The Central Government served a copy of that petition
on the appellant and called for its comments. At th~ same time
it called for the comments of the State Government as 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 respondent and
their further comments were called for.
After examining the
representation made by the parties and the comments offered by
the State Government, the Central Governmen,t dismissed the
petition made by the 5th respondent on September 30, 1964. The
I
Order of the Central Government reads thus :
B
From
To
"GOVERNMENT OF JNDIA
MINISTRY OF STEEL & MINES,
(Department of Mines and Metals),
No. MV-1 (569)/61
New Delhi, the 30th September, 1964
Shri A Nabar,
Under Secretary to the Government of India.
~hri Nankhu Singh,
. P.O. Churulia, Distt. Burdwan (West Bengal)
Subject : Application under rule 54 of the Mineral Concession
Rules, 1960 in respect of Mining lease for fire-clay over
248 acres in Mouza Palasthali, P.S. Na/a, Distt. Santai
Parganas.
Sir,
I am directed to refer to your application dated 17-10-1961
on the above subject and to say that after careful consideration the
Central. Government' hereby reject your revision application as
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being time-barred.
G
Yours faithfully,
Sd./-A. Nabar,
Under Secretary to the Government of India."
Thereafter the .Central Government passed a further order .on
H
November 5, 1964 and that order reads thus :
Registered AID
A
B
From
p, N. ROY v. BIHAR (Hegde, J.)
"GOVERNMENT OF INDIA
MINISTRY OF STEEL AND MINES
(Department of Mines and Metals)
No. MV-1(569)/61
525
New Delhi, the 5th November, 1964.
Shri H. S. Sahni,
Under Secretary to the Government of India.
C
To
D
E
F
G
H
The Secretary to the Government of Bihar,
Department of Mines and Geology, Patna.
Subject : Revision application 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 continuation of this Ministry's letter of even number dated
30-9-1964 on the above subject, I am directed to say that since
no· entry in the standard register was made as required under
former rule 67 of the Mineral Concession Rules, 1949, the area
could not have been held to be available and the four applications
(referred to in para 2 of the State Government's letter No. 3181/
M, dated 9-6-1962) would be deemed to be premature and should
have been re.iected on that ground alone.
Everi assuming that the notification was valid, the first two
applications were premature under rule 68 and on that ground
should have been rejected.
Apart from this the application of
M/s. D. N. Roy and S. K. Bannerjee was deemed to be rejected
on the expiry of 9 months from the date of receipt of application
i.e., 24-3-1960.
The party did not come up in revision.
The
application, therefore, ceased to exist and the order of the State
Government granting the ·lease to this party on 31-3-1962 was
without jurisdiction. The grant and consequent execution of the
Mining lease are therefore, void.
In view of the position explained above the Central Government in exercise of their revisionary power conferred by Rule 55
of Mineral Concession Rules, J 960 and all other powers enabling
in this behalf hereby set aside the order of the State Government
ccntained
in
their letter No. A/MM/4031/62-1789M, d11ted
526
SUPREME COURT REPORTS
[1971 J 2 S.C.R.
31-3-1962 (mentioned in State Government's letter No. A/MM4031/62-3181/M, ,dated 9-6-1962) granting Mining lease to
M/s. D. N. Roy and S. K. Banerjee and further direct them to
through open the area again under Rule 58 (I) of Mineral Concession Rule 1960 for regrant. The notification should clearly
indicate the date from which the area could be available for regrant and the date by which the petitioners should submit their
applications for mineral concession.
4. M/s. D. N. Roy and S. K. Banerjee are being informed.
Yours faithfully,
Sd./- H. S. Sahni
Under Secretary to the Government of India.
Copy forwarded to M/s. D. N. Roy and S. K. Banerjee village
and P. 0. Churulia, Distt. Burdwan (West Bengal) with reference
to their letter da(ed 12-6-1963.
Sd. / - H. S. Sahni
Under 'Secretary to the Government of India."
Aggrieved by this order the appellant moved the Patna High
Court under Art. 226 of the Constitution to quash the order of
the Central Government dated November 5; 1964 (which will
hereinafter be referred to as the 'impugned order'). The High
Court dismissed its petition.
As against the order of the High
Court the, appellant has brought this appeal after obtaining certificate of fitness from the High .Court.
c
D
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It was urged before the High Court that the Government
having passed the final order on September 30, 1964, it had no
power to review its own ·order and make any further order.
Admittedly there is no provision under the Mines and Minerals
(Regulation and Development) Act, 1957 or under the Mineral
Concession Rules, 1960 empowering the Central Government to
review its order. The High Court did not hold that the Central
Government had any power to review its own order either under.
G
the Mines and Mineral (Regulation and Development) Act, 1957
or under the Mineral Concession Rules.
It upheld the Central
Government's order on two grounds namely that the order dated
September 30, 1964 is not a complete order as it did not dispose
of the application made by the 5th respondent completely and
secondly the Central Government had suo moto power to review
the order of the State Government under s. 30 of the Mines and
Miner.als (Regulation and Development) Act, 1957. These conclusions of the High Court were assailed before us.
H
A
B
c
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G
H
D. N. ROY v. B!HAR (Hegde, /.)
527
In his application under rule 54 of the Mineral Concession
Rules, 1960, the 5th respondent prayed for (i) setting aside the ·
grant made in favour of the appellant and (ii) grant the area in
question on lease to him. The High Court thought that these are
two independent prayers. In its view the Central Government
by its order dated September 30, 1964 had disposed of only the
prayer of the 5th respondent to grant the area on lease to him
but it had not disposed of his first prayer namely to cancel the
grant in favour of the appellant. In our opinion this is an incorrect approach. The two reliefs asked for by the 5th respondent were inter-connected reliefs. 1n the context in which they
were made, they cannot be considered as independent prayers.
No grant in his favour could have been made without first setting
aside the grant made in favour of the appellant. Therefore the
first relief asked for by the 5th respondent is a necessary condition precedent for a grant in his favour.
Further by its order
dated September 30, 1964, the Central Government dismissed the
entire application of the 5th respondent on the gr01~nd that the
same was time-barred. If his .application in respect of one part
of his prayer was time-barred, it was equally time-barred in
respect of the other part.
The impugned order of the Central Government does not
show that it was made in the exercise of its suo moto power. It
is purpoted to have been made on the basis of the application'
made by the 5th respondent under rule 54 of the Mineral Concession Rules, 1960. In paragraph 3 of that order it says "in view
of the position explained above the Central Government in exercise of their revisionary power conferred by Rule 55 of Mineral
Concession Rules, 1960 and all other powers enabling in this.
behalf hereby set aside the order of the State Government contained in their letter No. A/MM/4031/62-1789M, dated March
31, 1962".
It is true that the order in question also refers to "all other
powers enabling in this behalf'.
But in its return to the writ
petition the Central Government did not plead that the impugned
order was passed in exercise of its suo moto powers. We agree·
that if the exercise of a power can be traced to an existing power
even though that power was not purported to have been exercised,
under certain circumstances, the exercise of the power can be
upheld on the strength of an undisclosed but undoubted power.
But in this case the difficultyis that at no stage the Central Government intimated to the appellant that it was
exercising its
suo moto power. At all stages it purported to act under rules 54
and 55 of the Mineral Concession Rules, 1960. If the Central
Government wanted to exercise its suo moto power it should have
intimated that fact as well as the grounds on which it proiiosed to
528
SUPREME COURT REPORTS
[1971] 2.s.C.R.
.exercise that power to the appellanrand given him an opportunity
.to show cause against the exercise of suo moto power as well as
.against the grounds on which it wanted to exercise its power.
Quite clearly the Central Government had not given him that
opportunity; The High Court thought that as the Central Government had not only intimated to the appellant the grounds mentioned in the application made by the 5th respondent but also
the comments of the State Government, the appellant had ade-
.quate opportunity to put forward his case.
This conclusion in
.our judgment is untenable.
At no stage the appellant was informed that· the Central a.1vernment proposed to exercise its
suo mato power and asked him to show cause against the exercise
of such a power. Failure of the Central Government to do so,
in our opinion, vitiates the impugned order.
For the reasons mentioned above we allow this appeal as well
as the writ petition and set aside the impugned order. Central
Government shal! pay the costs of the appellant in this Court as
well as in the High Court.
Y.P.
Appeal and petition allowed.
A
B
c