Sections 7(1), 2(ia), (m) read with Section 16(1)(a) and(i) of the Prevention of Food Adulteration Act (for short, ‘the Act’).-the certificate given by the Director, Central Forensic Science Laboratory supercedes the report given by Public Analyst=The Public Analyst, after analysis, opined that the sample does not conform to the standards of milk fat and therefore the same is adulterated.-After receipt of notice under Section 13(2) of the Act, the accused made a request to send a second sample to the Central Food Laboratory, Pune. Accordingly, second sample was sent and the Public Analyst opined that there is no sub-standard milk fat. =There cannot be any dispute that the certificate given by the Director, Central Forensic Science Laboratory supercedes the report given by Public Analyst under Section 13(3) of the Act. A perusal of Ex.C1, the report given by the Central Food Laboratory, Pune, discloses that the content of the milk fat is 12%, whereas the prescribed standard is not less than 10%. Therefore, if that is taken into consideration, the accused is entitled for a benefit of doubt.

THE HON'BLE SRI JUSTICE K.C.BHANU

CRIMINAL APPEAL No.19 of 2013

JUDGMENT:

        This Criminal Appeal is directed against the judgment dated 14.07.2009 passed in C.C.No.715 of 2007 on the file of the II Additional Judicial Magistrate of First Class, Ongole, whereunder and whereby the respondent/accused was acquitted of the offence punishable under Sections 7(1), 2(ia), (m) read with Section 16(1)(a) and(i) of the Prevention of Food Adulteration Act (for short, ‘the Act’).

2.      The appellant herein is the complainant and the respondent herein is the accused in the above Calendar Case.

3.      The allegations in the complaint are:

On 16.05.2007, the Food Inspector - complainant, along with his staff inspected the shop of the accused, who was transacting business; that during inspection, the Food Inspector found 100 cups of ice cream, each 50 grams, without label, kept for sale of human consumption; that the Food Inspector purchased 18 cups of ice cream by paying Rs.90/- and divided the same into three parts, and sent one sample to the Public Analyst for analysis.  The Public Analyst, after analysis, opined that the sample does not conform to the standards of milk fat and therefore the same is adulterated. After obtaining permission from the competent authority, prosecution was launched against the accused.

4.      During the course of trial, on behalf of the prosecution, PWs.1 and 2 were examined and Exs.P1 to P16 were marked.  On behalf of the accused, no oral or documentary evidence was adduced.  Ex.C.1 was marked through Court. After considering the evidence on record, the trial Court acquitted the accused. 

5.      Heard learned counsel for the appellant and learned counsel for the respondent.

6.      For the charges levelled against the accused, the Food Inspector has to establish that the sample was adulterated.  In the instant case, one of the samples was sent to the Public Analyst, who opined that the same does not conform to the standard of milk fats and therefore it was adulterated.  

After receipt of notice under Section 13(2) of the Act, the accused made a request to send a second sample to the Central Food Laboratory, Pune.  Accordingly, second sample was sent and the Public Analyst opined that there is no sub-standard milk fat.  

There cannot be any dispute that the certificate given by the Director, Central Forensic Science Laboratory supercedes the report given by Public Analyst under Section 13(3) of the Act.  A perusal of Ex.C1, the report given by the Central Food Laboratory, Pune, discloses that the content of the milk fat is 12%, whereas the prescribed standard is not less than 10%.  Therefore, if that is taken into consideration, the accused is entitled for a benefit of doubt. Hence, the order passed by the trial Court does not warrant any interference, as there are no compelling or substantial reasons to interfere with the same and the same is liable to be dismissed.

7.      Accordingly, the Criminal Appeal is dismissed.   Miscellaneous Petitions, if any, pending in this Criminal Appeal shall stand closed.

________________

                                                              (K.C. BHANU, J.)

27.11.2012

KH

Title = In a suit for injunction, what becomes material is the state of affairs, pertaining to possession as on the date of filing of the suit. The title is certainly important, but assumes significance only after possession. Though the title to the respective properties is yet to be established, if the appellant was able to prove his possession over the property, the relief of injunction could have certainly been granted ; Possession = The appellant, no doubt, filed Exs.A-5 and A-6 the 10(1) account and No.2 Adangal for the year 2005. However, immediately, prior to that period, Adangals were issued in the name of the respondents. The same is evident from Exs.B-7 to B-12. Things would have been different altogether, had the possession of the vendor of the petitioner been reflected in any records prior to 2005. Once Exs.B-7 to B-12 reflect possession of the respondents over the land, the appellant can succeed if only he claimed possession through them. Added to that, the possession of the vendor of the petitioner is nowhere shown in the records.

* HONOURABLE SRI JUSTICE L. NARASIMHA REDDY

+ SECOND APPEAL No.1425 OF 2012

 

% 13-02-2013

Between:

# Yachamaneni Rajaiah Naidu

                                                                    … Appellant

And

$ Yachamaneni Munikrishnaiah and others

                        …Respondents

! Counsel for the Appellant                            :        Sri S. V. Muni Reddy

^ Counsel for the Respondents                      :          None

            

< Gist:

> Head Note:

? Cases referred: 

  

HONOURABLE SRI JUSTICE L. NARASIMHA REDDY

SECOND APPEAL No.1425 of 2012

JUDGMENT: 

The appellant filed O.S. No.514 of 2005 in the Court of the Principal Junior Civil Judge, Srikalahasthi, against the respondents for the relief of perpetual injunction in respect of eight items of agricultural lands, aggregating to an extent of Acs.2.29 cents of land in different survey numbers of Kanamanambedu Village, Buchinaidu Kandriga Mandal, Chittoor District.  He pleaded that the suit schedule property was purchased under four registered Sale Deeds, dated 03-11-2005,
01-12-2005, 05-12-2005 and 08-12-2005 from the original owner and that his name was entered in the 10(1) account and No.2 Adangal in the year 2005.  It was alleged that the respondents are trying to interfere with his possession.  The respondents, on the other hand, filed written statement stating that the father of the vendor of the petitioner sold items 3 to 8 of the suit schedule property to them, way back in the year 1974 and ever since then they are in possession of the lands. 

2. The trial Court partly decreed the suit in respect of items 1 and 2 of the schedule and dismissed the suit as regards items 3 to 8.  Feeling aggrieved by denial of relief in respect of items 3 to 8, the appellant filed A.S. No.15 of 2007 in the Court of the Senior Civil Judge, Srikalahasthi. The appeal was dismissed through judgment, dated
30-08-2012.  Hence, this Second Appeal.

3.  Sri S.V. Muni Reddy, learned counsel for the appellant submits that the source of title for the appellant in respect of 8 items of property and the nature of defence of the respondents is one and the same, but the Trial Court and the lower appellate Court denied the relief in respect of items 3 to 8.  He contends that the possession of the appellant over all the items is reflected through Exs.A-5 and A-6. 

4. The suit filed by the appellant was for the relief of injunction simplicitor.  The trial Court framed two issues; as to whether the appellant is entitled for the relief of injunction?, and whether the cause of action is true? 

5.  On behalf of the appellant, PWs.1 to 4 were examined and Exs.A-1 to A-4 sale deeds and Ex.A-5 copy of No.2 Adangal and Ex.A-6 copy of 10(1) account were marked.  On behalf of the respondents, D.Ws.1 to 3 were examined and Exs.B-1 to B-3 sale letters, Ex.B-4 Old Ryot passbook, Ex.B-5 New Pattadar passbook and Ex.A-6 title deed were marked.  In addition to that, Exs.B-7 to B-12 copies of 10(1) account and No.2 Adangal were filed.

6.  The suit was partly decreed and in the appeal preferred by the appellant, the lower Appellate Court framed the following points for consideration:

1. Whether the plaintiff is in possession and enjoyment of  the plaint schedule property as on the date of filing of the suit by having right in it?

2. Whether there is any interference of the defendants with the plaint schedule property as claimed by the plaintiff, if it is so whether such interference is justifiable one or not?

The appeal was, ultimately, rejected.

          7.  In a suit for injunction, what becomes material is the state of affairs, pertaining to possession as on the date of filing of the suit.  The title is certainly important, but assumes significance only after possession.  

The appellant, no doubt, purchased eight items of property through four contemporaneous sale deeds in the year 2005.  The respondents, however, pleaded that about three decades earlier to that, the father of the vendor of the petitioner conveyed the lands through three sale letters, marked as Exs.B-1 to B-3.  

Though the title to the respective properties is yet to be established, if the appellant was able to prove his possession over the property, the relief of injunction could have certainly been granted.

          8.  The appellant, no doubt, filed Exs.A-5 and A-6 the 10(1) account and No.2 Adangal for the year 2005.  

However, immediately, prior to that period, Adangals were issued in the name of the respondents.  The same is evident from Exs.B-7 to B-12.  

Things would have been different altogether, had the possession of the vendor of the petitioner been reflected in any records prior to 2005.  

Once Exs.B-7 to B-12 reflect possession of the respondents over the land, the appellant can succeed if only he claimed possession through them.  

Added to that, the possession of the vendor of the petitioner is nowhere shown in the records.  

Therefore, no exception can be taken to the concurrent judgments rendered by the trial Court and the lower appellate Court.  

If the petitioner is so advised, he can file a suit for declaration of title and recovery of possession.

          9.  The Second Appeal is dismissed, with the above observation.  There shall be no order as to costs.  The miscellaneous petition filed in this second appeal shall also stand disposed of. 

____________________

L. NARASIMHA REDDY, J   

February 13, 2013.

The appellant is a driver by profession. He was found carrying 218 plastic cans. Each one of those cans contained 33 litres of spirit. The quantity of contraband was thus very large. -whether the appellant was the owner of the contraband or had any financial interest in its possession or transportation. There is nothing on record to suggest that the appellant had any such interest. The Investigating Officer ought to have made an endeavour to identify those behind the purchase and transport of the contraband. He should have looked for the consignor and consignee both. That is because arrest and prosecution of the driver of the lorry in which the goods were being carried can hardly be enough to weed out illegal trade in liquor. So long as the kingpins are not identified and brought to book the purpose sought to be served by the law prescribing a deterrent punishment cannot be achieved. It is common knowledge that in matters of illegal trade whether in liquor, drugs or other contrabands, the smaller fish only gets caught while the sharks who flourish in such trade often go scot free. The arrest and prosecution of the carriers of contrabands is in that view mere lip service to the avowed purpose underlying the legislation. No reason is forthcoming in the present case why no effort was made by the Investigating Agency to expose the racketeers without whose support and involvement such a big consignment of 4Page 5 spirit could not have been purchased nor its transportation arranged. 7. In the totality of the above circumstances and the fact that the petitioner was only a driver of the lorry in which the goods were being transported, we are inclined to reduce the sentence awarded to him from five years to three years rigorous imprisonment and a fine of rupees one lakh. In default of payment of fine the appellant shall suffer imprisonment for a further period of one year. The orders passed by the trial Court and the High Court shall stand modified to the above extent.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 397 OF 2013
(Arising out of S.L.P (Crl.) No.9343 of 2012)
Rajamani …Appellant
Versus
State of Kerala …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. The appellant was prosecuted for an offence punishable
under Section 55(a) of the Kerala Abkari Act (1 of 1077).
He
was found guilty by the Trial Court and sentenced to
undergo imprisonment for a period of seven years besides a
fine of rupees one lakh. In default of payment a further
sentence of one year simple imprisonment was also
awarded. The co-accused in the case was, however,
acquitted by the Trial Court.
1Page 2
3. Aggrieved by the conviction and the sentence awarded
to him, the appellant preferred Criminal Appeal No.1345 of
2003 before the High Court of Kerala at Ernakulam. The
High Court reappraised the evidence on record and came to
the conclusion that the charge framed against the appellant
had been rightly held to be proved by the Trial Court. The
conviction recorded against the appellant was accordingly
affirmed but the sentence awarded to him reduced from
seven years to five years but with an enhanced fine of
rupees two lakhs in default of payment whereof the
appellant was to undergo a further imprisonment of two
years.
4. When the special leave petition filed by the appellant
against the above judgment and order came up for
preliminary hearing before this Court on 26th November,
2012, we issued notice to the respondent limited to the
question of quantum of sentence awarded to the appellant.
We have accordingly heard learned counsel for the parties
on that limited question.
2Page 3
5. Section 55 (a) of the Act makes any contravention of
the Act or of any rule made thereunder in regard to “import,
transport, transit or any intoxicating drug” punishable with
imprisonment for a term that may extend to ten years and
a fine which shall not be less than rupees one lakh. It reads:
“55. For Illegal import, etc. – Whoever in
contravention of this Act or of any rule made under
this Act –
(a) Imports, exports, transports, transits or
possesses liquor or any intoxicating drug; or
xxx xxx xxx
shall be punished.-
(1) for any offence other than an offence
falling under clause (d) or clause (e), with
imprisonment for a term which may extend to
ten years and with fine which shall not be less
than rupees one lakh and
xxx xxx xxx”
6. The appellant is a driver by profession. He was found
carrying 218 plastic cans. Each one of those cans contained
33 litres of spirit. The quantity of contraband was thus very
large.
That could and ought to be one of the factors to be
taken into consideration while determining the quantum of
sentence awarded to him. What was equally important is
3Page 4
whether the appellant was the owner of the contraband or
had any financial interest in its possession or transportation.
There is nothing on record to suggest that the appellant had
any such interest. The Investigating Officer ought to have
made an endeavour to identify those behind the purchase
and transport of the contraband. He should have looked for
the consignor and consignee both. That is because arrest
and prosecution of the driver of the lorry in which the goods
were being carried can hardly be enough to weed out illegal
trade in liquor. So long as the kingpins are not identified
and brought to book the purpose sought to be served by the
law prescribing a deterrent punishment cannot be achieved.
It is common knowledge that in matters of illegal trade
whether in liquor, drugs or other contrabands, the smaller
fish only gets caught while the sharks who flourish in such
trade often go scot free. The arrest and prosecution of the
carriers of contrabands is in that view mere lip service to the
avowed purpose underlying the legislation. No reason is
forthcoming in the present case why no effort was made by
the Investigating Agency to expose the racketeers without
whose support and involvement such a big consignment of
4Page 5
spirit could not have been purchased nor its transportation
arranged. 
7. In the totality of the above circumstances and the fact
that the petitioner was only a driver of the lorry in which the
goods were being transported, we are inclined to reduce the
sentence awarded to him from five years to three years
rigorous imprisonment and a fine of rupees one lakh. In
default of payment of fine the appellant shall suffer
imprisonment for a further period of one year. The orders
passed by the trial Court and the High Court shall stand
modified to the above extent.
8. This appeal is disposed of in the above terms.
……………………...……………….……...…J.
(T.S. THAKUR)
……………………...………………….…...…J.
(SUDHANSU JYOTI MUKHOPADHAYA)
New Delhi
February 6, 2013
5

service matter - seeking a writ in the nature of certiorari for quashing the judgment and order dated 10.4.2007 passed by the Tribunal whereby the Tribunal was pleased to direct the State of U.P. to consider the case of the respondents for promotion on the post of Assistant Director and grant them all consequential benefits if found suitable. The High Court vide its impugned judgment and order dated 5.9.2007 was pleased to dismiss both the writ petitions preferred by the State of U.P. after recording a finding that the Rules of U.P. Forensic Science Laboratories Technical Officers’ Service (First Amendment) Rules 1990 dated 15.9.1990 which were published in the U.P. Government Gazette on 20.10.1990 will be deemed to be enforced from the date when they were duly published in the U.P. Government Gazette and not from the date when the rules were prepared and passed by the Government. As a consequence of this finding, it was held by the High Court as also the Tribunal that the Respondent/claimant-officials were duly eligible and qualified for consideration of their claim for promotion on the posts of Assistant Director Forensic Science as they had acquired the requisite years of experience for promotion by the time the rules were published in the gazette. - As a consequence of the aforesaid analysis, we have no hesitation in holding that the High Court was right in taking the view that the respondents were eligible for promotion to the post of Assistant Director under the Rules of 1987 against 25 per cent quota to be filled in by promotion as they satisfied the conditions of five years of requisite experience on the post of Scientific Officer if the experience were to be counted from the date of publication of the Rules in the U.P. Government Gazette. But besides the above, it cannot be overlooked that even if it were to be assumed that the respondents had not completed five years of experience on the post of Scientific Officer for any reason whatsoever making them ineligible for consideration of further promotion, they also had the statutory protection and benefit of the proviso to the said Rule 5 which laid down that where permanent scientific officers were not available for absorption under the 25% quota, such temporary and officiating personnel were also to be considered for promotion to the said posts who were functioning on permanent basis on the next lower post. It is an admitted position that the respondents had already been confirmed on the next lower post when they were promoted to the post of Scientific Officers and as they were entitled to the benefit of the proviso which laid down that even the temporary scientific officers who are permanent on next below post may also be considered for the purpose of promotion, the Respondents had a right to be considered for promotion since they were continuing on the post of Scientific Officer and had completed five years even before the Amended Rules came into effect on 20.10.1990 which laid down that all post of Assistant Directors would be filled by direct recruitment. Thus, for this additional and sure shot reason as also for the reasons which have been assigned by the High Court, we find no infirmity in the orders of the High Court as also the Tribunal which had held in favour of the respondents directing the appellant/State of U.P. to consider their eligibility for promotion to the post of Assistant Director Forensic Science and grant them the consequential benefit if found eligible. 16. We thus, find no substance in these appeals filed by the appellant/State of U.P. and consequently dismiss them but in the circumstances without any order as to costs.

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2208-2209 OF 2013
(Arising out of SLP (Civil) Nos. 7441-7442/2008)
State of U.P. & Ors.
...Appellants
Versus
Mahesh Narain Etc. …
Respondents
J U D G M E N T
GYAN SUDHA MISRA, J.
Leave granted.
2. The appellant-State of Uttar Pradesh has
preferred these appeals against the common judgment
and order dated 5.9.2007 passed in two writ petitions
bearing Nos. 1049(S/B)/2007 and 1040(S/B)/2007 whereby
the Division Bench of the High Court of Allahabad,Page 2
Lucknow Bench, Lucknow was pleased to dismiss both the
writ petitions filed by the appellant/State of U.P. herein.
3. The aforesaid two writ petitions were filed by
the appellant/State of U.P. represented by the Department
of Forensic Science and the Department of Home assailing
the judgment and order of the State Public Services
Tribunal, Lucknow (for short ‘the Tribunal’) and seeking a
writ in the nature of certiorari for quashing the judgment
and order dated 10.4.2007 passed by the Tribunal
whereby the Tribunal was pleased to direct the State of
U.P. to consider the case of the respondents for
promotion on the post of Assistant Director and grant
them all consequential benefits if found suitable. 
The High
Court vide its impugned judgment and order dated
5.9.2007 was pleased to dismiss both the writ petitions
preferred by the State of U.P. after recording a finding that
the Rules of U.P. Forensic Science Laboratories Technical
Officers’ Service (First Amendment) Rules 1990 dated
15.9.1990 which were published in the U.P. Government
Gazette on 20.10.1990 will be deemed to be enforced
2Page 3
from the date when they were duly published in the U.P.
Government Gazette and not from the date when the
rules were prepared and passed by the Government. As a
consequence of this finding, it was held by the High Court
as also the Tribunal that the Respondent/claimant-officials
were duly eligible and qualified for consideration of their
claim for promotion on the posts of Assistant Director
Forensic Science as they had acquired the requisite years
of experience for promotion by the time the rules were
published in the gazette. 
4. The facts of the case insofar as it is relevant for
determining the controversy between the contesting
parties indicate that the respondent No. 1 was initially
appointed as Junior Chemical Assistant in the Forensic
Science Laboratory in the year 1968. The nomenclature of
the said post of Junior Chemical Assistant was
subsequently changed to Scientific Assistant. The
respondent No.1 was promoted to the post of Senior
Chemical Assistant in the year 1973 and was further
promoted as Scientific Officer on 16.9.1985 and in
3Page 4
compliance of the promotion order he joined on the said
post on 20.9.1985. The said promotion order was issued
with a condition that the order of promotion would be
effective for a period of one year or until the service rules
were published. The State Government thereafter
published the U.P. Forensic Science Laboratories Technical
Officers Service Rules 1987 (Shortly referred to as the
Rules). Rule 5 of the said rules laid down that 75%
posts would be filled through direct recruitment and the
remaining 25% posts would be filled by promotion from
amongst the permanent scientific officers having 5 years
of experience. Besides this, the proviso to the said rule 5
laid down that where permanent scientific officers are not
available, such temporary and officiating personnel may
also be considered for promotion to the said post as may
be permanent on the next lower post. There were 15
posts of Assistant Directors in the Department which were
sanctioned by the State when the Rules of 1987 came into
force. Rules of 1987 were subsequently amended by U.P.
Forensic Science Laboratories Technical Officers Service
(First Amendment) Rules 1990 which was published in the
4Page 5
U.P. Government Gazette dated 20.10.1990. In the
meantime, the Respondents had already acquired 5 years
of experience on the next lower post due to which they
had become eligible for promotion to the post of Assistant
Director Forensic Science.
5. But in pursuance to the Rules of 1990, the State
Government notified 11 vacancies for direct recruitment
through a notification published in the Employment News
dated 5.1.1995. Since the promotion was not granted to
the respondents on the post of Assistant Director even
after five years of service against four vacancies which
were available to be filled under promotion quota, the
respondents filed claim petitions under the U.P. Public
Service Tribunal Act (1976).
The tribunal allowed the claim petition and directed the
authorities to consider the case of the respondents for
promotion against the said quota on the post of Assistant
Director and to promote them with all consequential
benefits including pay and allowances if found suitable.
5Page 6
6. The department Forensic Science of U.P. felt
aggrieved by the order of the tribunal and hence filed two
writ petitions which were dismissed by the High Court vide
the impugned judgment and order dated 5.9.2007
recording a finding that the U.P. Forensic Science
Laboratories Technical Officers Service (First Amendment)
Rules 1990 dated 15.9.1990 were published in the U.P.
Government Gazette on 20.10.1990 and they will be
deemed to be enforced from the date when they were
duly published in the U.P. Government Gazette and not
from the date when the rules were prepared by the
State Government as a result of which the Respondents
were eligible to be considered for promotion as they had
the requisite experience.
7. The appellant/State of U.P. felt aggrieved with
the judgment and order passed by the High Court as also
the tribunal and hence has filed these two special leave
petitions which arises out of the common judgment and
order of the High Court under challenge wherein the
principal ground of challenge is that the respondents
6Page 7
were not eligible for promotion to the post of Assistant
Director under Rules 5 and 16 of the 1987 Rules as they
were not possessing five years of experience nor were
functioning on permanent post of Scientific Officers. Thus,
they were not eligible in terms of Rule 5 and 16 of the
1987 Rules which provided for recruitment to 25% of
vacancies to the post of Assistant Director found amongst
the permanent scientific officers with five years
experience. It was stated that the respondents were
promoted to the post of Scientific Officer purely on ad hoc
basis on 16.9.1985 and were thereafter promoted on the
said post on permanent basis only on 20.3.1989 but the
Rules of 1987 were amended on 15.9.1990, whereby all
the posts of Assistant Director were to be filled by direct
recruitment. In these circumstances, it was submitted
that the respondents could not be deemed to have had
five years experience to their credit on the permanent
post of Scientific Officer as required by Rule 5 of the 1987
Rules so as to be eligible for consideration of promotion on
the post of Assistant Director.
7Page 8
8. In response to a show cause notice which was
issued to the respondents by this Court, it was contended
in sum and substance that the respondents were duly
qualified to be promoted as they had already put in five
years of service on the next lower post of Scientific Officer
to which they were promoted and were, therefore, rightly
held eligible to be considered for promotion to the post of
Assistant Director. Arguments were also advanced to the
effect that the respondents had already completed five
years of service in terms of Rule 5 of the 1987 Rules itself
which were applicable on the Respondents. It was further
elaborated that in view of Rule 5 of the 1987 Rules, the
respondents were entitled for consideration for promotion
to the posts of Assistant Directors against the quota of
25% of the vacancies reserved for departmental
candidates which were to be filled in by the candidates
who were already discharging duties in the department
since the amendment of 1990 laying down to fill all the
post of Assistant Directors by direct recruitment came into
effect on 20.10.1990 by which time the promotion of the
Respondent on the post of Scientific Officer already stood
8Page 9
confirmed so as to be eligible for consideration of
promotion for the post of Assistant Director under the
unamended Rules of 1987 and thus would not be affected
by the Amended Rules of 1990 laying down to fill all the
posts by direct recruitment.
9. In order to ascertain the correctness of the
orders passed by the High Court as also the Tribunal, we
have carefully examined the contesting claims of the
parties. In the process, we noticed that the respondents
were initially promoted to the post of Senior Chemical
Assistant in the year 1973 and were further promoted as
Scientific Officer on 16.9.1985 which they joined on
20.9.1985. It is no doubt true that this promotion order
indicated that the promotion was to remain effective only
for a period of one year or until the rules of 1987 were
published but thereafter when the Rules of 1987 were
finally published, it provided that 25% post of the total
posts of promotion were to be filled in from amongst the
permanent Scientific Officers having experience of five
years of service. Hence if the five years of service is
9Page 10
counted from the date of initial promotion until publication
of amended Rules of 1990, the respondents had already
completed five years of service on the post of Scientific
Officer making them eligible for further promotion of
Assistant Director under the 25% promotion quota to be
filled by the departmental candidates possessing the
required experience of five years. However, the
appellant/State of U.P. contested all through that the
experience of the Respondents would be counted not
from the date when the rules were published in the
Gazette but would be from the date when the rules were
under preparation in view of which they did not possess
the requisite experience of five years on the post of
Scientific Officer.
10. We however have no hesitation in holding that
this contention is fit to be rejected outright as the rules
cannot be held to be made effective from the date of its
preparation but will attain legal sanctity and hence
capable of enforcement only when the rules are made
effective and the date on which it is to be made effective
10Page 11
would obviously be the date when the rules are
published vide the gazette notification. In that view of the
matter, we find no infirmity in the Respondents plea that
they possessed the requisite experience of five years on
the post of Scientific Officer as they had already put in five
years of service from the publication of the amended
Rules of 1990 and, therefore, they were rightly held
eligible for consideration of promotion to the next post of
Assistant Director. We are thus pleased to approve and
uphold the view taken by the High Court on this count.
11. But even if we were to hold that the reasons
assigned by the High Court in the impugned judgment
suffered from some aberration since the respondents had
joined on the post of Scientific Officer in the year 1989
due to which in 1990, they did not acquire the requisite
experience, it cannot be overlooked that the respondents
had been promoted on the post of Scientific Officers on
16.9.1985 on ad hoc basis which had to remain effective
for a period of one year only but it had also ordered that
the incumbent would be entitled to continue on the
promoted post till the service rules of 1987 were
11Page 12
published. Thus the respondents had a right to continue
on the promoted posts when the Rules of 1987 were
finally published and made effective in 1987 which
earmarked that 25% of total posts were to be filled by
promotion from amongst the permanent Scientific
Officers having experience of five years of service and
further added a proviso which laid down that:
“where permanent Scientific Officers are
not available, such temporary and
officiating personnel may also be
considered for promotion to the said posts
as may be permanent on the next lower
post.”
Rules of 1987 were amended thereafter in the
year 1990 which was published in the U.P. Government
Gazette dated 20.10.1990 laying down that the
subsequent promotion would be made only by direct
recruitment. But this amendment cannot be allowed to
affect the respondents’ claim for promotion as a rule
cannot work to the prejudice of an employee who was
holding the post of his eligibility prior to the enactment
and enforcement of the Amended Rules of 1990. Since
the respondents were eligible and entitled to the
12Page 13
promotion for the post of Scientific Officer in terms of the
Rules of 1987, their experience could not have been
ignored on the said post so as to deny them the benefit
of consideration for the subsequent post of Assistant
Director on the basis of Rules of 1990 which could be
made effective for the vacancies which arose after 1990.
12. Learned counsel for the respondents in support
of this position has also cited the authority of this Court in
the matter of Nirmal Chandra Bhattachrjee & Ors. vs.
Union of India & Ors. reported 1991 Supp. 2 SCC 363
wherein this Court observed as under:-
 “No rule or order which is meant to benefit
employees should normally be construed in
such a manner as to work hardship and
injustice specially when its operation is
automatic and if any injustice arises then the
primary duty of the courts is to resolve it in
such a manner that it may avoid any loss to
one without giving undue advantage to
other”.
The Court further observed that the mistake or delay on
the part of the department should not be permitted to
recoil on the appellants, more so since, the restructuring
13Page 14
order in the said case itself provided that vacancies
existing on July 31, 1983 should be filled according to
procedure which was in vogue before August 1, 1983.
This Court therefore, restored the promotion order of the
employees to which they were entitled prior to the
change of service rules as it was held that the change of
service rules cannot be made to the prejudice of an
employee who was in service prior to the change. The
Court further went on to hold that if the delay in
promotion takes place at the instance of the employer,
an employee cannot be made to suffer on account of
intervening events.
13. The principle laid down in the aforesaid case
aptly fits into the facts and circumstances of this case as
the subsequent amendment of 1990 laying down to fill in
all the posts of Assistant Director Forensic Science by
direct recruitment could not have been applied in case of
the respondents who were already holding the post of
Scientific Officer and hence were eligible to the promoted
quota of 25% posts of Assistant Director after completion
of five years of service as Scientific Officers in terms of
14Page 15
the Rules of 1987 and, therefore, their experience of five
years on this post could not have been made to go waste
on the ground that the amendment came into effect in
1990 making all the posts of Assistant Director to be filled
in by direct recruitment. In support of this view, the
counsel for the Respondents also relied on the decision of
this Court in the matter of B.L. Gupta & Anr. vs. M.C.D.
reported in (1998) 9 SCC 223 wherein this Court had held
that any vacancy which arose after 1995 were to be filled
up according to rules but the vacancies which arose prior
to 1995 should have been filled up according to 1978
rules only.
14. As a consequence of the aforesaid analysis, we
have no hesitation in holding that the High Court was
right in taking the view that the respondents were eligible
for promotion to the post of Assistant Director under the
Rules of 1987 against 25 per cent quota to be filled in by
promotion as they satisfied the conditions of five years of
requisite experience on the post of Scientific Officer if the
15Page 16
experience were to be counted from the date of
publication of the Rules in the U.P. Government Gazette. 
15. But besides the above, it cannot be overlooked
that even if it were to be assumed that the respondents
had not completed five years of experience on the post of
Scientific Officer for any reason whatsoever making them
ineligible for consideration of further promotion, they also
had the statutory protection and benefit of the proviso to
the said Rule 5 which laid down that where permanent
scientific officers were not available for absorption under
the 25% quota, such temporary and officiating personnel
were also to be considered for promotion to the said posts
who were functioning on permanent basis on the next
lower post. It is an admitted position that the
respondents had already been confirmed on the next
lower post when they were promoted to the post of
Scientific Officers and as they were entitled to the
benefit of the proviso which laid down that even the
temporary scientific officers who are permanent on next
below post may also be considered for the purpose of
16Page 17
promotion, the Respondents had a right to be considered
for promotion since they were continuing on the post of
Scientific Officer and had completed five years even
before the Amended Rules came into effect on 20.10.1990
which laid down that all post of Assistant Directors would
be filled by direct recruitment. Thus, for this additional
and sure shot reason as also for the reasons which have
been assigned by the High Court, we find no infirmity in
the orders of the High Court as also the Tribunal which
had held in favour of the respondents directing the
appellant/State of U.P. to consider their eligibility for
promotion to the post of Assistant Director Forensic
Science and grant them the consequential benefit if found
eligible. 
16. We thus, find no substance in these appeals
filed by the appellant/State of U.P. and consequently
dismiss them but in the circumstances without any order
as to costs.
……………………………..J.
(T.S. Thakur)
17Page 18
……………………………..J.
(Gyan Sudha Misra)
New Delhi,
February 06, 2013
18

writ of mandamus the State Government directed to execute a mining lease for an area measuring 1519.980 hectares in favour of the respondent-company.-The High Court held that although the State Government had not issued any final order so far regarding the deduction of the area yet since a final decision appeared to have been taken by it, thereby implying that the issue of a show cause notice after taking of such a decision was a mere formality. In coming to that conclusion, the High Court placed reliance upon paragraph 8 of the counter affidavit filed by the State Government before the High Court. The High Court also held that in the absence of a mining lease in favour of the respondent-company, it could not take the risk of setting up of a steel plant. The High Court accordingly quashed letter dated 19th September, 2006 and by mandamus directed the State Government to execute a formal mining lease in favour of the respondent-company. = no final decision regarding resumption of any part of the lease area has been taken by the State Government so far and all that had transpired till date must necessarily be taken as provisional. Such being the case the High Court was in error in proceeding on an assumption that a final decision had been taken and in quashing what was no more than an inter-departmental communication constituting at best a step in the process of taking a final decision by the Government. = (1) Whether the writ petition filed by the respondent company was premature, the same having been filed against an inter-departmental communication that did not finally determine any right or obligation of the parties? (2) Whether the show cause notice could be ignored by the High Court simply because it had been issued in violation of 15Page 16 the interim order passed by it requiring the parties to maintain status quo? (3) Whether the show cause notice was without jurisdiction and could, therefore, be quashed?- In the result we allow this appeal, set aside the judgment and order passed by the High Court and direct that the respondent-company shall submit its reply to the show cause notice dated 6th February, 2007 issued by the State Government within three months from today. The Government may then upon consideration of the reply so submitted pass a reasoned order on the subject within two months thereafter under intimation to the respondent. If the order so made is, for any reason found to be unacceptable by the respondent-company, it shall have the liberty to take recourse to appropriate proceedings before an appropriate forum in accordance with law.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2206 OF 2013
(Arising out of S.L.P. (C) No.16139 of 2010)
State of Orissa & Ors. …Appellants
Versus
M/s Mesco Steels Ltd. & Anr. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. This appeal arises out of a judgment and order dated
16th May, 2008 passed by the High Court of Orissa at
Cuttack whereby Writ Petition No.14044 of 2006 filed by the
respondent-company has been allowed, an interdepartmental 
communication in the form of a letter dated
19th September, 2006 addressed by the Director of Mines to
Joint Secretary to Government of Orissa quashed and by
writ of mandamus the State Government directed to
1Page 2
execute a mining lease for an area measuring 1519.980
hectares in favour of the respondent-company.
3. By Notification No.647/91 dated 23rd August, 1991, the
Government of Orissa de-reserved and threw open
Iron/Manganese Ore areas spreading over 282.46 square
miles in five blocks located in Keonjhar and Sundergarh
districts in the State. Applications were then invited from
interested private parties in terms of Rule 59 of the Mineral
Concession Rules, 1960 for grant of prospecting licenses and
mining leases in respect of the said blocks. The exercise
was, it appears, intended to boost the economy of the State
by ensuring optimum utilisation of its mineral reserves and
in the process generating employment opportunities for the
predominantly tribal population inhabiting the two districts
of the State. The invitation to apply for leases and to set up
steel plants was open to all leading steel manufacturers. 
4. In response to the advertisement notice applications
were received from different parties including one filed by
respondent-Mesco Steels Ltd. These applications appear to
have been evaluated, culminating in a conditional
2Page 3
recommendation made by the State Government in favour
of the respondent-company.
One of the conditions which the
State Government imposed in exercise of its power under
Rule 27 (3) of the Mineral Concession Rules, 1960 required
that the lessee shall set up two full-fledged Steel Plants
within a reasonable time to be intimated by the lessee at
the time of issue of the terms and conditions for the grant of
the proposed mining lease.
The other condition required
that the lessee would utilise the entire iron ore extracted
from the lease area for meeting the captive requirement of
the Steel Plants to be set up at Duburi and Jakhapura and
that no commercial trading of the mining material shall be
carried out by it. 
5. By an order dated 7th January, 1999 the Government
of India, Ministry of Steel and Mines, Department of Mines,
conveyed the approval of the Central Government for grant
of the mining lease for extraction of iron ore from an area
measuring 1011.480 hectares in villages Kadakala and
Luhakala besides an area measuring 508.500 hectares in
villages Sundara and Pidapokhari in district Keonjhar for a
3Page 4
period of 30 years. The approval was subject to the State
Government ensuring compliance of the amended provisions
of the Mines and Minerals (Regulation and Development)
Act, 1957 and the Rules made thereunder besides the
provisions of the Forest (Conservation) Act, 1980 and
Notification dated 27th January, 1994 issued in terms
thereof. 
6. On receipt of the approval from the Central
Government the State Government conveyed to the
respondent-company the terms and conditions subject to
which it proposed to grant a mining lease for mining of iron
ore from the area mentioned above which included 377.690
hectares of forest land in villages Sundara and Pidapokhari
of Keonjhar district. 
A letter dated 8th February, 1999 issued
by the State Government to the respondent-company
stipulated the terms and conditions that would govern the
proposed mining lease and required the respondent company to convey its acceptance to the same.
 In response,
the respondent-company by its letter dated 15th February,
1999 conveyed its unconditional acceptance of the terms
4Page 5
and conditions stipulated in the letter mentioned earlier.
The
acceptance letter was followed by another letter dated 13th
March, 1999 by which the respondent-company informed
the State Government that it had already taken steps for
preparation of a mining plan and initiated action for
preparation and approval of de-reservation proposal for the
mining lease in village Sundara and Pidapokhari over an
area measuring 508.500 hectares said to be forest land.
What is significant is that the respondent-company also
pointed out that it was on the verge of completion of its
Steel Plant at Kalinga Nagar, Industrial Complex, Sukinda,
P.O. Danagadi, District Jajpur, Orissa which was expected to
be commissioned by April/May, 1999. The State
Government eventually sanctioned the grant of a lease in
favour of the respondent-company to the extent indicated
earlier in terms of its order dated 17th March, 1999.
7. By a letter dated 19th June, 2000 addressed to the
respondent-company the State Government pointed out
that the company had failed to submit the required mining
plan and obtain the approval of Ministry of Environment and
5Page 6
Forest, Government of India, in regard to forest land
involved in the proposed mining lease despite extension of
time allowed to the respondent-company by the
Government in terms of its letter dated 11th October, 1999.
The State Government further pointed out that on account
of the company’s inaction in the matter of setting up the
proposed two steel plants, IDCO had initiated action for
cancellation of allotment of 3100 acres of land allotted in
favour of MESCO Kalinga Steel Plant, the sister concern of
the respondent-company, for the proposed steel plant,
captive power plant and township.
The letter in that
backdrop invited the respondent-company for a personal
hearing in terms of Rule 26(1) of the Mineral Concessions
Rules, 1960 to discuss whether the iron ore required by the
respondent-company for the steel plant which was already
in existence could be assessed to enable the company to
retain the iron ore deposits required for the said plant and
restore back the remainder to the Government.
8. The respondent-company acknowledged receipt of the
letter above mentioned and, inter alia, pointed out that the
6Page 7
mining plan for the entire area had been prepared and
submitted separately on 31st January, 2000. It was also
pointed out that out of the total extent covered by the
proposed lease only 508.500 hectares was forest land for
which extent alone was a diversion proposal required to be
submitted. It also referred to certain other steps taken by
the company like survey and demarcation of the area which
was underway. More importantly, the company stated that it
had already invested Rs.57.12 crores in the project but had
to put the same on hold on account of the steel market
passing through a lean phase because of which all steel
majors were facing problems due to a glut in the market.
The respondent-company claimed to have undertaken
substantial work for developing the mine including financial
participation by a Canadian company and assured the
Government that the proposed project would create
enormous job opportunities for the people of Orissa. 
9. For nearly four years thereafter the matter appears to
have remained pending for a final decision at different
administrative levels in the Government. What is significant
7Page 8
is that by letter dated 26th May, 2004 the Director of Mines,
Orissa, wrote to the Joint Secretary, Department of Steel
and Mines, Government of Orissa, inter alia, pointing out
that an area measuring 469.25 hectares included in the
proposed lease in favour of the respondent-company was
overlapping with the area recommended for allotment to the
Orissa Mining Corporation Ltd. and that even though the
Government had moved for elimination of the said
overlapping area in terms of Director’s letter dated 1st June,
2000, no formal Government order in the matter had been
received. The Director further pointed out that D.F.O.,
Keonjhar had reported in terms of its letters dated 15th
January, 2004 and 7th February, 2004 that major portion of
the surveyed and demarcated area came under Khandadhar
D.P.F. and was reported to be forest land as per column 7 of
the D.L.C. report to which effect an affidavit had also been
filed before this Court by the State Government. It was also
mentioned that the Mining Officer had reported that an area
measuring 692.6953 hectares out of the surveyed and
demarcated area of 802.6678 hectares came under forest
land which attracted the provisions of Forest Conservation
8Page 9
Act, 1980. Clearance from the Ministry of Environment and
Forests, Government of India, was, therefore, absolutely
necessary for execution of any mining lease in respect of the
said area and till such time this essential pre-condition was
not fulfilled, the execution of the lease deed was not legally
permissible. By another letter dated 19th September, 2006,
the Director of Mines recommended re-allocation of
resources based on the requirement of iron ore for the
existing steel plant set up by the respondent-company. It
was further recommended that the respondent-company
should not be permitted to carry on any trading activity in
iron ore removed from the area to be allocated in its favour
based on its actual requirement for the existing unit.
10. Aggrieved by the said inter-departmental
communication the respondent-company filed Writ Petition
No.14044 of 2006 before the High Court of Orissa at
Cuttack in which the company prayed for quashing of the
recommendations made by the Director of Mines proposing
to reduce the lease area granted to the respondentcompany and prayed for a mandamus directing the State
9Page 10
Government to execute the mining lease in respect of the
entire 1519.980 hectares of land in the villages mentioned
earlier. By an order dated 1st February, 2007 the High Court
directed maintenance of status quo. Despite the said order,
however, the Government of Orissa issued a notice dated 6th
February, 2007 by which it called upon the respondent company 
to show cause as to why the overlapping area of
469.25 hectares of the State PSU and 921.258 hectares
granted in excess of the captive requirement of the unit set
up by the respondent-company may not be deducted from
the total mining lease area of 1519.980 granted to the
company. The High Court ignored the show cause notice
primarily on the ground that the same had been issued in
the teeth of the interim order by which the parties had been
directed to maintain status quo, and eventually came to the
conclusion that the proposed reduction of the mining lease
area whether on account of the alleged overlapping of the
areas with the area approved for Orissa Mining Corporation
or on account of the failure of the respondent-company and
its sister concern to set up the second steel plant was not
justified. The High Court held that although the State
10Page 11
Government had not issued any final order so far regarding
the deduction of the area yet since a final decision appeared
to have been taken by it, thereby implying that the issue of
a show cause notice after taking of such a decision was a
mere formality. In coming to that conclusion, the High Court
placed reliance upon paragraph 8 of the counter affidavit
filed by the State Government before the High Court. The
High Court also held that in the absence of a mining lease in
favour of the respondent-company, it could not take the risk
of setting up of a steel plant. The High Court accordingly
quashed letter dated 19th September, 2006 and by
mandamus directed the State Government to execute a
formal mining lease in favour of the respondent-company.
The present appeal assails the correctness of the said
judgment of the High Court as already noticed earlier.
11. Appearing for the appellant, Mr. U.U. Lalit, learned
senior counsel, made a three-fold submission before us.
Firstly, he contended that the writ petition filed by the
respondent-company was manifestly premature as the
Government had not taken any final decision that could have
11Page 12
been challenged by the respondent-company nor was the
writ petition, according to the learned counsel, maintainable
against a mere inter-departmental letter dated 19th
September, 2006, which did not by itself finally decide any
right or obligation of the parties so as to furnish a cause of
action to the respondent to challenge the same in the extra
ordinary writ jurisdiction of the High Court. Secondly, it was
contended that even if the letter could be described as a final
decision taken by the State Government in regard to the
reduction of the lease area, the respondent-company ought
to have taken recourse to proceedings under Section 30 of
the Act before the Central Government instead of rushing to
the High Court in a writ petition. Thirdly, it was contended
that the very issue of a show cause notice to the respondent company
suggesting reduction of the lease area after
assessment of the actual requirement by reference to the
plant already set up, meant that the Government had not
taken any final decision in the matter and that the
respondent-company could say whatever it intended to say
in opposition to the action proposed in the show cause notice
where upon the Government could notify a final order on the
12Page 13
same, which order could then be challenged by the
respondent-company either before the Central Government
or before the High Court in a writ petition if otherwise
permissible. Inasmuch as the High Court ignored the show
cause notice and proceeded on the assumption that the
same was an exercise in futility, it fell in a serious error,
argued Mr. Lalit. The proper course, according to the learned
counsel, was to allow the State Government to take a final
view on the show cause notice after considering the response
which the respondent-company may have to make.
12. On behalf of the respondent-company it was contended
by Mr. Rakesh Dwivedi, learned senior counsel, that although
the show cause notice issued by the appellant-State had not
been specifically challenged in the writ proceedings before
the High Court, this Court could look into the notice and
examine whether the same had been validly issued on
grounds and material that are legally tenable. He urged that
although the State Government may be competent to recall
its recommendations in exceptional situations, any such
exercise of powers of recall can never be exercised arbitrarily
or whimsically. At any rate, the exercise of power of recall
13Page 14
was, according to the learned counsel, wholly unjustified in
the facts and circumstances of this case as the whole
attempt of the Government appeared to be to somehow
deprive the respondent-company of the benefit of the mining
lease already sanctioned in its favour. It was also contended
that the question of overlapping of the area had since been
examined and rejected by the State Government as was
apparent from the Minutes of the Meeting held in the office of
the Chief Minister on 29th October, 2001, a copy whereof has
been placed on record as Annexure R-1. It was also
contended that the State Government was making much ado
about nothing regarding the setting up of the second steel
plant and that the same was no more than a pretext to deny
to the respondent-company its rightful due under the
sanction order issued by the Central Government and the
grant made by the State. It was contended by Mr. Dwivedi
that the requirement of an approved mining plan which was
one of the conditions for the grant of lease had already been
complied with while the execution of a lease deed could be
made subject to the clearance of the project and the grant of
a no objection by the Ministry of Environment and Forest
14Page 15
under Section 2 of the Forest (Conservation) Act, 1980. The
order passed by the High Court could to that extent be
modified, argued Mr. Dwivedi. Inasmuch as the High Court
had not taken note of the requirement of such clearance
being essential not only under the Act aforementioned but
also because of the directions issued by this Court in T.N.
Godavarman Thirumulkpad v. Union of India & Ors.
(1997) 2 SCC 267, it had no doubt committed a mistake
but that did not warrant, setting aside of the entire order
passed by the High Court.
13. We have given our anxious consideration to the
submissions made at the bar.
The following questions, in our
opinion, arise for determination:
(1) Whether the writ petition filed by the respondent company was premature, the same having been filed against
an inter-departmental communication that did not finally
determine any right or obligation of the parties?
(2) Whether the show cause notice could be ignored by the
High Court simply because it had been issued in violation of
15Page 16
the interim order passed by it requiring the parties to
maintain status quo?
(3) Whether the show cause notice was without jurisdiction
and could, therefore, be quashed?
14. We propose to deal with the questions ad seriatim.
Regarding Question No.1
15. The writ petition, as already noticed above, was
directed against a communication that had emanated from
the office of Director of Mines and brought forward certain
factual aspects relevant to the question whether a lease deed
could be immediately executed in favour of the respondent company.
A careful reading of the said communication would
show that it was issued in pursuance of a letter dated 12th
January, 2006 from the Joint Secretary, Government of
Orissa to the Director of Mines and another letter dated 29th
August, 2006. By the former letter the Joint Secretary to the
Government had instructed the Director of Mines to take
action pursuant to certain directions issued by the Chief
Minister of Orissa. This included making a real assessment of
the requirement of respondent-company and permitting
16Page 17
execution of a lease deed subject to clearance of the Ministry
of Environment and Forest, Government of India. The
instructions issued to the Director of Mines also required him
to resume the excess area for reallocation of the same to
other deserving parties. The Director of Mines had responded
to the said communication and assessed the mineral deposits
in the area by reference to maps and surveys and made a
recommendation back to the State Government. It is obvious
from a conjoint reading of letter dated 12th January, 2006
and communication dated 19th September, 2006 sent by the
Director of Mines in response thereto that a final decision on
the subject had yet to be taken by the Government, no
matter the Government may have provisionally decided to
follow the line of action indicated in its communication dated
12th January, 2006 issued under the signature of the Joint
Secretary, Department of Steel and Mines. It is noteworthy
that there was no challenge to the communication dated 12th
January, 2006 before the High Court nor was any material
placed before us to suggest that any final decision was ever
taken by the Government on the question of deduction of the
area granted in favour of the respondent so as to render the
17Page 18
process of issue of show cause notice for hearing the
respondent-company an exercise in futility. On the contrary,
the issue of the show cause notice setting out the reasons
that impelled the Government to claim resumption of a part
of the proposed lease area from the respondent-company
clearly suggested that the entire process leading up to the
issue of the show cause notice was tentative and no final
decision on the subject had been taken at any level. It is only
after the Government provisionally decided to resume the
area in part or full that a show cause notice could have been
issued. To put the matter beyond any pale of controversy,
Mr. Lalit made an unequivocal statement at the bar on behalf
of the State Government that no final decision regarding
resumption of any part of the lease area has been taken by
the State Government so far and all that had transpired till
date must necessarily be taken as provisional. Such being
the case the High Court was in error in proceeding on an
assumption that a final decision had been taken and in
quashing what was no more than an inter-departmental
communication constituting at best a step in the process of
taking a final decision by the Government.
The writ petition
18Page 19
in that view was pre-mature and ought to have been
disposed of as such. Our answer to question No.1 is
accordingly in the affirmative.
Regarding Question No.2
16. In the light of what we have said while deciding
question No.1 above, this question should not hold us for
long. It is true that the High Court had by an interlocutory
order directed the parties to maintain status quo, but
whether the said order had the effect of preventing the State
Government from issuing a show cause notice was arguable.
The issue of show cause notice did not interfere with the
status quo. It simply enabled the respondent-company to
respond to the proposed action. Be that as it may, once the
show cause notice was issued, the High Court could have
directed the respondent-company to respond to the same
and disposed of the writ petition reserving liberty to it to take
recourse to such remedy as may have been considered
suitable by it depending upon the final order that the
Government passed on the said notice. What was significant
was that the respondent-company had not assailed the
19Page 20
validity of the show cause notice on the ground of jurisdiction
or otherwise. If the validity of the show cause notice was
itself in question on the ground that the Government had no
jurisdiction to issue the same, nothing prevented the
company from maintaining a writ petition and challenging the
notice on that ground. The High Court would in that event
have had an opportunity to examine the validity of the
notice. In the absence of any such challenge the High Court
could not simply ignore the notice even if it was issued in
breach of the order passed by the Court. It was one thing to
prevent further steps being taken pursuant to the notice
issued by the Government but an entirely different thing to
consider the notice to be non est in the eye of law. The High
Court could have taken the show cause notice as a reason to
relegate the parties to a procedure which was just and fair
and in which the respondent could urge all its contentions
whether on facts or in law. Our answer to question No.2 is,
therefore, in the negative.
Regarding Question No.3
20Page 21
17. Although it is not necessary for us now to examine the
question of validity of the show cause notice as the same was
not questioned before the High Court in the writ petition filed
by the respondent-company, we may to the credit of Mr.
Dwivedi, learned senior counsel appearing for the
respondent-company, mention that he did not seriously
challenge the validity of the notice on the ground of
jurisdiction. Mr. Dwivedi fairly conceded that the State
Government could, in appropriate situations, exercise the
option of recalling or modifying its recommendations but
contended that the present case did not present a situation
that could justify such a recall. 
18. We do not propose to make any comment or express
any opinion to the merits of the show cause notice. So long
as the notice is not without jurisdiction as indeed it does not
appear to be so, the question whether the grounds taken in
the same provide a good basis for proposed action can be left
open for the Government to decide. All that we need say is
that learned counsel for the parties made detailed
submissions in regard to the grounds given in the notice and
the validity thereof from their respective points of view and
21Page 22
in support of their respective versions. Some of these
grounds and submissions were quite attractive also. But so
long as the matter is yet to be examined by the State
Government, we consider it unnecessary to prejudice the
issues or express any opinion about the merits of the said
contentions on either side. The proper course, in our opinion,
would be to leave the contentions available to the parties
open for being determined by competent authority in the
Government who would, in our opinion, do well to carefully
consider the reply which the respondent may submit to the
said show cause notice and pass a reasoned order on the
subject. Question No.3 is answered accordingly. 
19. In the result we allow this appeal, set aside the
judgment and order passed by the High Court and direct that
the respondent-company shall submit its reply to the show
cause notice dated 6th February, 2007 issued by the State
Government within three months from today. The
Government may then upon consideration of the reply so
submitted pass a reasoned order on the subject within two
months thereafter under intimation to the respondent. If the
order so made is, for any reason found to be unacceptable by
22Page 23
the respondent-company, it shall have the liberty to take
recourse to appropriate proceedings before an appropriate
forum in accordance with law. 
20. Parties are left to bear their own costs.
……………………………..…J.
(T.S. Thakur)
 ..…………………………..…J.
New Delhi (Gyan Sudha Misra)
March 6, 2013
23