Decided on February 28,1973

UNION OF INDIA Respondents


- (1.) THE husband of the petitioner obtained a mining lease of manganese (Annexure-1) dated 30th of September, 1943 from the Bonai Durbar for a period of thirty years. The original lessee died on 11th of November, 1948 leaving behind the petitioner as the sole heir. On 1st of June, 1958 the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter to be referred to as the Act)came into force. Under Section 8 (1) of the Act the Central Government had powers to modify prior mining leases to a period of twenty years. In accordance with that power, on 12-1-1959 the lease (Annexure-1) was modified to a period of twenty years with effect from 30-9-1943 by the order Annexure-2. The substantive part of Annexure-2 modifying the period of lease runs thus:--"period of the lease shall be 20 years counting from 30-9-1943; renewal to be regulated according to the law and rules in force when it falls due. " as by Annexure-2 the lease was to expire on 30th of September, 1963, the petitioner made an application for renewal on 16-3-1963/20-3-1963. The State government rejected this application on 30th of March, 1965 on the ground that the petitioner failed to produce the income-tax clearance certificate as required under the rules of renewal. The petitioner filed such a certificate on 1-4-1965 and applied for review of the rejection order dated 30th of March, 1965. The State government refused to review the earlier order on 25-5-1965. A revision was filed before the Central Government on 26th of May, 1965 which was dismissed on 30th of October, 1965. The petitioner filed O. J. C. 20 of 1966 to quash the order, dismissing the revision. The writ application was dismissed on 28th of October, 1969. The case is reported in 36 Cut LT 633 = (AIR 1971 Orissa 75 (Sm. Deo Kuar bai Pandya v. The Union of India ). Possession of the mine was taken by the State government on 23rd of August, 1971. In AIR 1967 SC 964 (Gujarat Pottery Works (P) Ltd. , v. B. P. Sood) majority of their Lordships held that the Act is not retrospective and a mining lease cannot be modified to a period of twenty years retrospectively. Following this decision this very Bench of this Court held in (1971) 2 Cut WR 918 (Serajuddin and Co. v. Union of India) that the lease is to be modified with effect from the date when the Act came into force, that is, from 1-6-1958. But the period of twenty years cannot be extended beyond the date when the original lease was to expire. The petitioner's case is that after coming to know this decision of this Court she was advised that she had still a valid title and wrongly she filed an application for renewal and pursued other remedies to obtain renewal and that she had been illegally dispossessed. The writ application has been filed under Article 226 of the constitution for issue of a writ of mandamus directing opposite party No. 3 to hand over possession of the mine to the petitioner.
(2.) IN the counter affidavits filed by the opposite parties the aforesaid facts are not disputed. The learned Government Advocate urged that the writ application is liable to be dismissed on account of laches and delay.
(3.) THE main question for consideration in this writ application is whether the decision of this Court in 36 Cut LT 633 = (AIR 1971 Orissa 7) constitutes res judicata so far as this writ application is concerned. In that case the petitioner wanted the revisional order of the Central Government to be quashed as it assigned no reasons for rejecting the revision application. No question was raised that the petitioner had still a subsisting title in the lease-hold. Even if such a contention had been raised at the time of hearing by citing the Supreme Court decision, such a contention would have been rejected as inadmissible as the writ application was not based on the basis of title. That case proceeded on the assumption that the petitioner had no title to the lease-hold which had come to ah end by the order Annexure-2 and that she should have been granted renewal. The point raised in this writ application was neither heard nor decided in 36 Cut LT 633 = (AIR 1971 Orissa 7 ). There is no question of res judicata in this case and the learned Government Advocate did not also press that point. We, however, considered it appropriate to deal with the question of res judicata as such a point is likely to arise in a case of this nature.;

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