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Judgment
Vikramajit Sen, Ag.C.J.
This application for seeking dismissal of the writ petition has been filed by the applicant-Respondent No.4, S.K. Sarawagi & Co. Pvt. Ltd on 30.10.2009. The alternative prayer is that the order dated 06.05.2004 be vacated. By that order, the operation of Annexure-P dated 21.02.2004 granting a mining lease in favour of the applicant-Respondent No.4 for iron and manganese ore over an area of 148.44 hectares in Navalahatti village of Sandur taluk of Bellary district for a period of twenty years came to be stayed by the Court. The Applicant states that it was expecting an early hearing of the writ petition for some years and since that did not occur, the present application has been preferred.
The gravamen of the assault is founded on the factum of the writ petitioner having challenged the said mining lease granted in favour of the Applicant-Respondent No.4 by way of a Revision to the Central Government under Rule-54 of the Mineral Concession Rules. Ergo, the writ petition itself was not and continues to be not maintainable. It is contended by Mr. Rajiv Nayyar, learned Senior Counsel appearing for the Applicant-Respondent No.4 that the Revision is the proper and efficacious remedy against the order dated 21.02.2004, the operative portion of which reads as follows:-
In the circumstances, it is requested to obtain and communicate the approval of Government of India as per Sec. 5 (1) of M & M (D & R) Act 1957, for grant of the mining lease in favour of M/S. S.K. Sarawagi & Co. Pvt. Ltd., Bellary for iron and manganese ore over an area of 148.44 hectares in Navalahatti village of Sandur taluk of Bellary district for a period of 20 years as per the sketch enclosed.
This letter has been addressed to the Secretary to the Government of India, Ministry of Coal and Mines, Department of Mines, Shastry Bhavan, New Delhi 110 001 and has been authored by the Secretary to Government, (Mines, SSI & Textiles), Commerce and Industries Department, Bangalore.
It has not been controverted by the Petitioner that the said Revision Application No. 13 (7)/2004-RC-I had been filed on 03.06.2004. In that connection, Final Order No.24/2004 dated 07.08.2004 has been passed u/s 30 of the Mines and Minerals (Development and Regulation) Act 1957 and Rule 57 of the Mineral Concession Rules, 1960 (MCR). The Order records that counsel for the Petitioner had received instruction "to withdraw the Revision Petition in view of the fact that the Petitioner has already filed a Writ Petition No. 18174 of 2004 before the Hon''ble High Court of Karnataka against impugned order passed by the Respondent....... In view of the above, the prayer for withdrawal of the RA is accepted. The RA is, accordingly, dismissed as withdrawn."
The contention of Shri. Rajiv Nayyar, learned Senior Counsel for the applicant is that the statutory remedy lay in a Revision under Rule-54 of the Mineral Concession Rule-1960. Therefore, the extraordinary powers vested in this Court under Article-226 of the Constitution of India would not be available to the petitioner. Moreover, in the present case, since that remedy has been availed of, a fortiori a writ petition would not be maintainable and especially so where the Appropriate Authority has already dismissed the Revision as withdrawn, without granting liberty to the petitioner to pursue the writ petition.
Per contra Shri. D.L.N. Rao, learned Senior Counsel for the petitioner submits that non-maintainability of a writ petition when an equal efficacious statutory remedy has been provided for, is not an inflexible rule. In the present case, Mr. Rao argued that the Writ Petition had been filed much prior to preferment of the Revision to the Central Government and since rule nisi had been issued and interim stay as prayed for had also been granted, the Petitioner should not be defaulted for withdrawing the Revision. Reliance has been placed by Mr. Rao on Collector of Customs and Excise, Cochin and Others Vs. A.S. Bava, wherein it was held that ''it is settled that existence of a remedy by way of revision does not bar the jurisdiction of the High Court to entertain a petition under Article 226." Similar pronouncement had been made in M.P. State Agro Industries Development Corporation Ltd. and Another Vs. Jahan Khan, wherein the reiteration is that an alternative remedy does not operate as bar to the exercise of a Writ Court''s discretionary jurisdiction of judicial review. In Popcorn Entertainment and Another Vs. City Industrial Development Corpn. and Another, a coordinate Bench had opined that "relegation of writ petitioner to alternative remedy was not warranted, when all the four grounds for interference noticed in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, had been made out. Reliance has also been placed on the celebrated Constitutional Bench decision in Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I and Another, ; but the factual matrix, it appears to us, is different to that put forth before us. In A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, , a coordinate Constitutional Bench similarly pronounced "that the party who applies for the issue of high prerogative writ should, before be approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion."
Mr. Rao has also raised a second cognate point namely that where once Rule Nisi has been issued, dismissal of a writ petition on the grounds of availability of an alternative remedy would lead to miscarriage of justice. Support has been sought for on M/S Mac Charles Brothers -Vs- Commercial Tax Officer 1987 (1) Kar. L.J, Short Notes of Cases-130; B.B. Barigiyavar -Vs- Hubli-Dharwad Municipal Corporation (2006) 6 KLJ 100; Lakkappa -Vs- Deputy Commissioner, Bangalore (2001) 6 KLJ 96 . Thirdly, Mr. Rao has argued that the dismissal of the writ petition solely on the ground of existence of an alternative remedy, whether availed of or not, after the pendency of the Writ petition for a long time would lead to miscarriage of justice. In this regard, reliance is placed on S.N. Srinivas Murthy and Others Vs. The Corporation of The City of Bangalore, ; Gowtham Tendulkar -Vs- State of Karnataka (2001) 2 KLJ 485 and Kunhambu -Vs- Presiding Officer, DRT, Bangalore (2002) 6 KLJ 350.
In this conspectus, we are satisfied that the Writ Petition does not deserve to be dismissed at the present stage of its existence. We cannot lose sight of the fact that the first action was that of filing of the Writ Petition in which Rule Nisi came to be issued. It is also noteworthy that simultaneously leave had been granted to the Applicant-Respondent No.4 to move for vacation/modification of the interim order. It has taken the Applicant-Respondent No.4 five years to file an application seeking these reliefs. For half a century, the established/settled position is that existence of an alternative remedy is not an outright bar to exercise extraordinary writ jurisdiction. The interplay of these two factors lead us to conclude that the writ petition should not be dismissed at this late stage; rather the lis should be decided on its merits.
The Miscellaneous Writ Application No. 10870/2009 is dismissed, but with no order as to costs.
List this matter for hearing on 15.12.2011 along with other connected matters.