Gani Ahmad vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Aditya Singh, learned counsel appearing on behalf of the appellant-writ petitioner and Mr. Pradeep Joshi, learned Standing Counsel appearing on behalf of the State Government and, with their consent, the Special Appeal is disposed of at the stage of admission.

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No. 65 of 2019 dated 17.05.2019. The appellant herein filed Writ Petition (M/S) No. 65 of 2019 seeking a mandamus commanding respondents 1 to 3 to extend the time period for removing the River Bed Material from the lot as allotted to the petitioner; and a mandamus commanding the fourth respondent to provide passage to the petitioner for removing the River Bed Material from the lot as allotted to him.

The appellant-writ petitioner was granted a mining lease to extract River Bed Material from the river bed, on payment of Royalty, for the period upto 30.06.2018. The appellant-writ petitioner claims that he was disabled from extracting the permitted quantity of River Bed Material, during the currency of the lease period, because of heavy rains. He would rely on the proceedings of the District Magistrate, Haridwar dated 02.01.2019 which, in turn, was based on the report of the Sub Divisional Magistrate dated 29.10.2018, whereby the State Government was requested to consider whether licensees, who were allotted the right to extract River Bed Material, should be granted extension in view of the unprecedented rains in the area during the period of subsistence of the lease.

Contending that no action was taken by the State Government in this regard, the appellant-writ petitioner invoked the jurisdiction of this Court, and sought a similar direction to the State Government, as was issued by two Division Bench orders of this Court in Special Appeal No. 540 of 2018 dated 08.08.2018 and Writ Petition (S/B) No. 540 of 2018 dated 06.09.2018.

In the order under appeal, the learned Single Judge observed that the appellant-writ petitioner was given the right to mine River Bed Material in a particular area; the lease was for a particular period for which royalty was paid by the appellant-writ petitioner; according to the appellant-writ petitioner, he could not carry on mining activity in that area; and he had, therefore, approached the Court seeking extension of time, and to be allowed to collect River Bed Material. The learned Single Judge observed that grant of any such relief to the appellant-writ petitioner would amount to interference with the conditions of the contract; and the contract was itself signed by the appellant-writ petitioner being fully aware of the fact that the lease was for a particular area, and for a particular period, which had come to an end. The writ petition was dismissed as devoid of merit.

Mr. Aditya Singh, learned counsel for the appellant-writ petitioner, would submit that a mandamus was issued by a Division Bench of this Court, in its orders in Special Appeal No. 540 of 2018 dated 08.08.2018 and Writ Petition (S/B) No. 540 of 2018 dated 06.09.2018; and a similar order should be passed in this case also.

On the other hand Mr. Pradeep Joshi, learned Standing Counsel for the State Government, would submit that the words "WPSB" have been wrongly typed; both the orders, on which the learned counsel for the appellant-writ petitioner places reliance upon, are only orders passed in Special Appeal No. 540 of 2018; while it is true that a direction was issued by a Division Bench of this Court to grant extension of lease, such directions are contrary to law since no mandamus would be issued compelling the authorities to act in a particular manner; and the learned Single Judge was justified in dismissing the writ petition since, under the garb of this writ petition, the appellant-writ petitioner was seeking extension of the lease period, which was granted only for a specified duration.

The appellant-writ petitioner, in effect, seeks a mandamus to the respondents to extend the lease period. One of the conditions for exercising power under Article 226, for issuance of a mandamus, is that the Court must come to the conclusion that the aggrieved person has a legal right, and that such a right has been infringed. The applicant has to satisfy the Court that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought. The duty that may be enjoined by a mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law. (Director of Settlements, A.P. v. M.R. Apparao : (2002) 4 SCC 638; and Kalyan Singh v. State of U.P. : AIR 1962 SC 1183). No one can seek a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one, suffering a legal grievance, can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (Halsbury's Laws of England, 4th Edn., Vol.I, para 122; State of Haryana v. Subash Chander Marwah : (1974) 3 SCC 220; Jasbhai Motibhai Desai v . Roshan Kumar Haji Bashir Ahmed : (1976)1 SCC 671; Ferris: Extraordinary Legal Remedies, para 198; and Mani Subrat Jain v. State of Haryana : (1977) 1 SCC 486). In order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority, and the aggrieved party has a legal right under the statute to enforce its performance. (The State of Haryana Vs. Subash Chander Marwaha and others : (1974) 3 SCC 220; Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College : AIR 1962 SC 1210). If there is no statutory basis for the claim, and there is no provision in the statute imposing an obligation, it would not furnish a ground for issuance of a writ of mandamus. (Union of India v. E. Merck India : (1998) 9 SCC 412).

The appellant-writ petitioner has not been able to show any statutory right of his having been violated. His only claim is to have suffered monetary loss for no fault of his. It would be wholly inappropriate, in these circumstances, for this Court to issue a mandamus to the respondent-authorities to grant extension of lease to the appellant-writ petitioner, more so when no statutory provision, which confers on the appellant-writ petitioner any such right, has been brought to our notice.

While the respondent-authorities can, possibly, be called upon to consider the appellant-writ petitioner's claim in accordance with law, no mandamus could have been issued directing them to exercise their discretion in a particular manner. If, during the hearing of the case, it is pointed out to the Court that the party has raised a grievance before the statutory/appropriate authority, and the authority has not decided the same, the Court may direct the said authority to decide the representation within a stipulated time by a reasoned order. It is, however, not desirable that the Court should take upon itself the task of the statutory/appropriate authority, and pass an order in a particular manner. (The Rajasthan State Industrial Development and Ors.Vs. Subhash Sindhi Cooperative Housing Society Jaipur and Ors. : (2013) 5 SCC 427; G. Veerappa Pillai Vs. Raman and Raman Ltd. & Ors. : AIR 1952 SC 192; Life Insurance Corporation of India Vs. Mrs. Asha Ramchandra Ambedkar & Anr. : (1994) 2 SCC 718; H.P. Public Service Commission Vs. Mukesh Thakur & Anr. : AIR 2010 SC 2620; and Manohar Lal Vs. Ugrasen & Ors. :(2013) 5 SCC 448).

The Division Bench, in its orders in Special Appeal No. 540 of 2018 dated 08.08.2018 and Writ Petition (S/B) No. 540 of 2018 dated 06.09.2018, has directed the respondent-authorities to permit the petitioners therein to extract River Bed Material. No such direction could have been issued in the absence of the appellant-writ petitioner showing any legal right of his having been violated, or of a legal duty having been imposed by law on the respondents to grant the appellant-writ petitioner extension of lease, though the specified period of lease has already expired. Such a direction would also fall foul of the law declared by the Supreme Court in the aforesaid judgments, none of which were considered by the Division Bench in its two orders. Reliance placed on these two orders by Mr. Aditya Singh, learned counsel for the appellant-writ petitioner, is, in our view, misplaced since the aforesaid orders do not declare the law; and the directions issued by the Division Bench, in the aforesaid orders, run contrary to the law declared by the Supreme Court in the aforesaid judgments.

The scope of interference in an intra-Court appeal is extremely limited, and it is only if the order under appeal suffers from a patent illegality would interference be justified. We find no such infirmity in the order under appeal on this score.

While no mandamus can be issued to the State Government to extend the period of lease to enable the appellant-writ petitioner to excavate River Bed Material, long after the lease period expired in June, 2018, the fact remains that the District Magistrate has already addressed a letter to the respondent-authorities on 02.01.2019 based on the report of the Sub Divisional Magistrate dated 29.10.2018. Suffice it, in such circumstances, to modify the order under appeal and direct the first respondent to examine the appellant-writ petitioner's claim for extension of the lease period strictly in accordance with law, take a considered decision in this regard, and communicate the same to the appellant-writ petitioner at the earliest and, in any event, not later than two months from the date of receipt of a certified copy of this order.

Suffice it to make it clear that the appellant-writ petitioner's claim shall be examined on its merits, and strictly in accordance with law, uninfluenced by the directions issued in the earlier orders passed by the Division Bench of this Court in Special Appeal No. 540 of 2018 dated 08.08.2018 and Writ Petition (S/B) No. 540 of 2018 dated 06.09.2018.

Subject to the aforesaid modification, the appeal fails and is, accordingly, dismissed. No costs.