Judgment

MITTER, J.:- This is an appeal from a judgment and order of the High Court of Orissa directing the State of Orissa and other respondents to the petition filed before the High Court to put the said petitioner in possession of the virgin area of the Ib River Colliery claimed to have been taken possession of on the 28th February, 1970 and further restraining the said respondents from interfering with the possession of the petitioner over the said colliery in any manner until evicted in due course of law. The order of the High Court was made on a petition filed by the said petitioner (the main contesting respondent before this Court) for relief against the State of Orissa and some of its officers as also the Western Bengal Coal-fields Ltd., the application being one under Art. 226 of the Constitution.

2. The relevant facts leading to the filing of the application are as follows. On October 1, 1917 the Secretary of State for India granted and demised unto one T. P. Yeoman the mines, beds, veins and seams of coal and coal dust situate, lying and being in or under a tract of land measuring approximately Ac. 1300-00 subject to the restriction and conditions as to the exercise and enjoyment of powers and privileges mentioned in the document of the said date and paying to the Secretary of State the rent and royalties reserved. The document of lease also contained various covenants entered into by the Secretary of State including a clause for renewal of the lease for a further term of 30 year subject to certain conditions to be noted hereinafter. The said Yeoman purported to create some right in favour of one M. N. Dutta. After purchase of the said Dutta s interest at a court sale by the Hindu undivided family of Chandanmull Indra Kumar, the Secretary of State entered into an agreement with the said Chandanmull Indra Kumar on December 21, 1934. By this agreement the Secretary of State recognised Chandanmull Indra Kumar as the lessee in respect of the mines etc. under an area of Ac. 871-49 out of the grant to Yeoman subject to the provisions, terms and conditions of the original lease up to the 30th September, 1947.

3. The relevant terms and conditions of the covenants contained in the lease of 1917 were as follows:

1. The lessee was empowered to sink, drive, make, maintain and use in the lands mentioned any pits, shafts, inclines and other works.

2. Before using for surface operations any land which had not already been used for such operations, the lessee was to give the Deputy Commissioner of Sambalpur for the time being as the agent in that behalf of the Secretary of State, two calendar months notice in writing specifying the name or other designation of the land proposed to be so used.

3. The lessee was to pay to the Secretary of State in respect of all parts of the surface lands which were from time to time to be occupied or used by the lessee under the authority of the lease rent at the rate fixed as also royalties for the materials raised.

4. The lessee was not to assign the lease or transfer any interest thereunder without the previous sanction of the Local Government to any person, company etc. Not holding a certificate of approval under the rules prescribed by the Governor-General in Council; and no assignment or transfer was to be effectual unless within one calendar month after the date thereof the lessee shall have given notice to the Deputy Commissioner as specified and paid registration fees as therein mentioned.

5. The Secretary of State on its part covenanted with the lessee that if the lessee was desirous of taking a renewed lease of the premises demised for the further term of 30 years after the expiration of the term granted and of such desire shall have, prior to the expiration of such last mentioned term, given to the Deputy Commissioner six calendar months previous notice in writing, the Secretary of State upon request and at the expense of the lessee and upon his executing and delivering to the Secretary of Sta