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CASE NO.:

Appeal (civil) 5689 of 1994

PETITIONER:

SALIGRAM KHIRWAL

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT: 09/09/2003

BENCH:

R.C. LAHOTI & ASHOK BHAN

JUDGMENT:

JUDGMENT

2003 Supp(3) SCR 522

The following Order of the Court was delivered :

Late Dr. Sarojini Pradhan, whose heirs are impleaded as respondent Nos. 3

to 8 herein (collectively called hereafter as ’private respondents’, for

the sake of convenience) was holding a mining lease over an area of

163.4723 hectares in village Banarai for extraction of lime stone and

dolomite. Late Dr. Sarojini Pradhan committed breach of terms and

conditions of the mining lease in her favour consequent whereupon the State

Government determined her lease and called for fresh applications vide a

notification dated 3rd December, 1977. The termination of the mining lease

held by late Dr. Sarojini Pradhan is now only a matter of past history

inasmuch as that termination has achieved a finality and is not in dispute

in the present proceedings.

Pursuant to the notification dated 3rd December, 1977, nine applications

came to be submitted for the grant of mining lease in terms of sub-Sections

(2) and (3) of Section 11 of the Mines and Minerals (Regulation and

Development) Act, 1957. The appellant before us and late Dr. Sarojini

Pradhan were also amongst the applicants. Having scrutinised all the

applications, the Director of Mines, on 31st January, 1979, recommended the

mining lease being granted in favour of the appellant. On 4th December,

1979, the State Government passed an order granting the mining lease in

favour of the appellant. The terms and conditions proposed by the State

Government were accepted by the appellant on 3rd January, 1980. On 11th

January, 1980, the mining lease was executed and the formal grant order in

favour of the appellant was issued by the State Government on 16th January,

1980. Late Dr. Sarojini Pradhan preferred a Revision to the Central

Government against the grant in favour of the appellant. But the Revision

was dismissed by the Central Government on 29th May, 1982. Some time in the

year 1982, Dr. Sarojini Pradhan filed a writ petition in the High Court of

Orissa laying challenge to the rejection of her application and to the

grant in favour of the appellant. During the pendency of the writ petition,

on 10th September, 1987, Dr. Sarojini Pradhan expired. Her legal

representatives, the private respondents, prayed for substitution which

prayer was allowed by the High Court, leaving it open for consideration at

the time of final decision whether any right to sue survived to the private

respondents or not. The matter was finally heard on 15th December, 1992 and

disposed of by the High Court by its decision dated 23rd February, 1993.

The writ petition filed by late Dr. Sarojini Pradhan and prosecuted by the

private respondents was allowed, the grant in favour of the appellant was

set aside and the State Government was directed to consider the

applications afresh. Feeling aggrieved by the judgment of the High Court,

the appellant has filed this appeal by special leave.

The singular submission made by the learned counsel for the appellant is

that the right to sue did not survive to the private respondents and,

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therefore, the High Court has committed a serious error of law in hearing

the writ petition on merits and then allowing the same. It is submitted by

the learned counsel that consequent upon the death of Dr. Sarojini Pradhan,

the writ petition ought to have been dismissed as having bated as there was

no occasion for allowing substitution in the facts and circumstances of the

case. The learned counsel for the private respondents, on the other hand,

submitted that the right to sue did survive and it is the status and

entitlement of the parties by reference to the year 1978, that is the year

in which several applications were filed before the State Gov