JUDGMENT
1. All these appeals except Appeal No. 1022/1992 are preferred against the order dted 13-3-1992 passed by the learned single Judge in W. P. No. 14241 of 1991 and W. P. No. 14783 of 1991. W.A. No. 1022/ 1992 is preferred against the. order dated 18-3-1992 passed in W. P. No. 17142/1991. It may be mentioned here that the order in W. P. No. 17142/1991 is passed following the order in W.P. Nos.14241 and 14783 of 1991. Under these circumstances, all these appeals are taken up together for final disposal.
2. The facts relevant for the disposal of these appeals, briefly stated, are as under :
In exercise of the powers vested under Section 15 of the Mines and Mineral (Regulation and Development) Act, 1957, (hereinafter referred to as the Act) the Government of Karnataka made the Rules known as “Karnataka Minor Mineral Concession Rules, 1969” (hereinafter referred to as the Rules) by a notification dated 19-4-1969. Chapter II of the said Rules contains provisions relating to grant of quarrying lease in respect of land in which minor minerals belong to Government. We may point out here that the question in controversy in these appeals relates to leases in respect of land and minerals therein belonging to Government. Rule 3 provides for restrictions on grant of quarrying lease. Rule 3A was introduced by amending the rules by a notification dated 5-9-1979 placing restrictions with reference to tease of quarries in respect of black granite. Rule 3A was amended by a notification dted 21-5-1980 extending the definition of “black granite”. By a notification dated 23-6-1981, Rule 3 A was further amended by substituting the words “black granite or pink granite” for the words “black granite” in the heading as also in sub-rules (1) and (2), excluding the explanation to the same. By a notification dated 27-3-1982, Rule 3A was further amended as under :
“Amendment of Rule 3 A – In Rule 3 A of the Karnataka Minor Mineral Concession Rules, 1969,–
(i) in the heading, for the words, “Black Granite”, the words “Black Granite” or “Pink Granite” shall be substituted;
(ii) in sub-rules (1) and (2), excluding the explanation, for the words “Black Granite” wherever they occur, the words “Black Granite” or “Pink Granite” shall be substituted;
(iii)in the explanation, after the words “Rock Dyke”, thy words “and Pink Granite includes a granite of red colour and related shades, brown colour and related shades, different shades and admixture of pink, red, brown, rose etc. Porphyritie granite with shades of pink, brown, red rose and black colour gucissic granite with different black and patches of pink, red, brown, rose and black colour, gray granite with pink, red, brown and rose peisparquartz” shall be inserted”.
Then again by a notification dated 22-5-1990, the Government amended Rule 3A by which the absolute restrictions on the grant of lease of Government lands for quarrrying granites in favour of private parties, was relaxed so as to enable such of those persons who have already established a granite cutting and polishing industry and those who have distinct industrial programmes for the utilisation of the said mineral in curing and polishing unit within the State ‘o obtain leases from the Government. Subsequently, the said Rule was further amended by a notification dated 4-1-1991 by which all applications made under Rule 3A(3)(2) and pending consideration prior to the commencement of 1990 Rules stood abated and it was also provided that any person may apply for the grant of lease after 15 days from the commencement of the 1991 Rules. The 1991 amendment further liberalised (he restrictions in the matter of grant of lease.
3. The amendment of Rule 3 A by way of substitution by 1990 Rules as also 1991 Rules were challenged in certain writ petitions and it is slated that this Court granted stay of the operaton of the said Rule in some writ petitions. When the matter stood at that stage, the Government of Karnataka, issued an order dated 18-6-1991 under No.Cl.51. MMN91(1) relating to grant of quarry leases for black, pink and multi-coloured granite under Rule 3 of the Rules. That is the order impugned in the aforesaid three writ petitions which is under consideration of this Court. With a view to appreeiale the submissions made on either side, from a proper perspective it is indeed necessary to cull out the entire order which reads as under :
“Proceedings of the Government of Karnataka
Sub : Granting of quarry Leases for black pink and multi-coloured granite under Rule 3 of Karnataka Minor Mineral Concessions Rules, 1969.
Read : Government letters No. Cl51 MMN 91 dated 3-5-1993, 4-5-1991 and 9-5-1991.
Preamble :
With a view to encash the favourable international market trend in respect of ornamental granite and keeping in view the export potential on the request of Government of India in this behalf besides brining in additional revenue to the State exchequer apart from checking the illegal and unscientific granite exploitation, the Government of Karnataka amended Rule 3A of ihe Karnataka Minor Mineral Concession Rules, 1969 providing for grant of Quarry Leases in favour of 100% Exportoriented industries, private entrepreneurs who have already set up industries and those who have distinct industrial programme. In this behalf two notifications were issued as per No. CI 304 MRC 87(P) dated 22-5-1990 and CUM MRC 90 (P) dated 4-1-1991. The amendment so effected have been the subject matter of litigations as the validity of these amendments have been challenged before the Hon’ble High Court and some of the writ petitioners obtained stay orders to operate these amendments.
By virtue of such stay orders the purpose behind which Rule 3A has been amended could not be achieved. While the Government have made efforts to get the stay vacated the plethora of writ petitions filed before the High Court in the way of ensuring scientific quarry activities in this State forcing the Government to search for other provisions in the Karnataka Minor Mineral Concession Rules, 1969.
Rule 3 of Karnataka Minor Mineral Concession Rules, 1969 is the principal Rule conferring power on the department of Mines and Geology to grant quarry leases with the prior approval of the Government. In the light of stay ordcts. and availability of the principal Rule 3 the matter has been got legally examined. It is felt that because of the pendency of the litigation under Rule 3A, there is no systematic and scientific quarrying and the interest of the State Revenue is affected to a great extent and therefore it is felt that there is no bar to act under Rule 3 of the Karnataka Minor Mineral Concession Rules, 1969 until the validity or otherwise of the Rule 3A brought out by the two notifications dated 22-5-1990 and 4-1-1991 is determined.
Government Order No.Cl.51 MMN 91(1) Bangalore, Dated 18-6-1991 .
In the circumstances explained in the preamble Government have decided to resort to Rule 3 of Karnataka Minor Mineral Concession Rules, 1969 and at the same time vest with the Director of Mines and Geology power to dispose of the applications seeking Quarry Leases in respect of all lands and that the Director of Mines and Geology shall be the controlling officer even in respect of land coming under Forest Zone. However, in respect of Forest area, the grant of lease would be subject to the applicants obtaining clearance under the Forest Conservation Act.
2. Necessry amendments to Rule 2(l)(c) defining the Controlling Officer in respect of forest area also on the above lines are being issued separately. Similarly, the Government hereby notifies the Deputy Director (Mineral Administration) as the Competent Officer in respect of all specified minor minerals including the ornamental granites.
3. The Director of Mines and Geology while disposing of the applications received under Rule 3 of the Rules 1969 shall ensure that the area for which applications seeking Quarry Leases are received is not involved in any of the High Court Litigation. Further, the Director of Mines and Geology shall also follow scrupulously the separate set of guidelines issued in this behalf.
By order and in the name of
the Governor of Karnataka
Sd/- (Manjegowda)
Desk Officer,
Commerce and Industries Dept.,
(Mines)”
As pointed out earlier, the aforesaid order was challenged in the aforesaid three writ petitions by way of public interest litigation. In substance, the petitioners have challenged the said order mainly on two grounds. In the first place it was contended by them that the said Government Order was issued to oblige a favoured few who are close to the corridors of power. Secondly it was contended that Rule 3A is a special provision dealing with the leases of granite and that therefore Rule 3 could not have been invoked to grant lease of land for quarrying granite. It was also contended that even otherwise leases could not have been granted otherwise than by public auction. We may point out here that there is a mention in the course of the order passed by the learned single Judge that though Rule 3A was also challenged the same was given up by the petitioners. In that view of the matter, it was not necessary lor us to advert to that aspect. The respondent who were mainly the Government and its Officers.
4. On behalf of the State Government objections are filed to the writ petitions contending that the State Government liberalised the policy of leases relating to granite and there was spate of litigation before this Court and though originally interim orders had been granted generally staying Rule 3A, subsequently, the same was confined to only the petitioners concerned (petitioners challenging Rule 3A) therein and with a view to effecting systematic and scientific quarrying and to preventing illegal quarrying and to earn more foreign exchange the Government had to issue the impugned order. It was also contended for the respondents that on account of the interim orders granted by this Court illegal quarrying became rampant and in order to stop the same the Government thought of alternative methods and one of them being the issuance of the impugned order. It was also contended that the policy formulated once need not be adhered for all time to come and as and when need arises it is permissible to the Government to change its policy and the Government having felt that it would serve public interest directed issue of leases under Rule 3 which would not only provide safeguards from illegal quarrying of granites, but also regulate the activities thereof. It was also pointed out that the Controlling Officer had to ensure that areas applied for were not involved in the litigations and they could provide the grant of lease only in respect of areas not covered by litigation. It was farther contended that the department of Mines and Geology had to observe Rules 3 and 4 and that the allegation that the same would not subserve the public interest was not well founded.
5. The learned single Judge, on a consideration of the materials on record and for the reasons reflected in its impugned order, quashed the Government Order dated 18-6-1991 and all consequential acts taken in that behalf were declared as null and void and the State Government and its Officers were restrained from giving effect to any such action taken pursuant to the Government Order dated 18-6-1991. The said order was passed by the learned single Judge in W.P. No. 14241/ 91 and W.P. No. 14783/1991 and following the said order, W.P. No.17142/1991 was also dismissed.
6. We have heard the arguments of the learned Counsel on either side.
7. In the light of the submissions by the learned Counsel on either side, the following points arise for consideration :
(1) Whether the Government had no power to issue the impugned order?
(2) What is the impact of stay of the operation of Rule 3A and what is the ambit of Rule 66 of the Rules?
(3) Whether the petitioners were not competent to file and prosecute the writ petitions by way of public interest litigation?
(4) What order?
8. Points 1 to 3 :
Since these three points are inextricably mixed up with each other it would be convenient to take up these points together for discussion.
9. As pointed out earlier, the “Rules” are made by way of subordinate legislation in exercise of the powers vested in the State Government under S. 15 of the Act. Grant of “quarrying lease”, that is to say, a lease granted to quarry a minor mineral is regulated by Chapter II of the Rules. Restrictions on-grant of quarrying lease are laid down in Rule 3 of the Rules. Further Rule 3A is a special provision laying down restriction relating to lease of granite of different colours. It is significant to notice here that Rule 3A both before it was amended and also after amendment by way of substitution by 1990 Rules, contains a non obstante clause. The substituted rule commences as under :
“Notwithstanding anything to the contrary contained in these rules, no lease for quarrying black, pink, red, green, yellow or multicoloured granite shall be granted or renewed :”
A careful perusal of the above Rule would unmistakably go to show that lease for quarrying granite of various colours can be granted only in the way as stated in Rule 3A. In other words, the earlier part of the said Rule is in the nature of an injunction. As rightly pointed out by the learned single Judge whenever an area is covered by a statutory rule, the same eannot be superseded by an executive order unless of course the Rules themselves permit the relaxation of the same. Instances are not uncommon where legislative enactments containing provisions vesting the power in the specified authorities or the Government us the case may be for exempting a particular item from the operation of any of the provisions of the Act. In this connection, the decision in P. J. Irani v. State of Madras, and the decision in M/s. Jalan Trading Co., Private Ltd. v. Mill Ma/.door Sabha. cited at the Bar by the learned Senior Counsel, Sri Chidambaram, throw a lot of light as regards the scope and ambit of power of exemption.
10. In the instant case, it is not in dispute that the Government order which was challenged by the writ petitioners and which is culled out hereinabove, deviates from R. 3A, Further the official Memorandum dated 18-6-1991, referred to in para 3 of Government order dated 18-6-1991 also deviates from Rule 3A. However, Sri Chidambaram, learned Senior Counsel who addressed the leading arguments for the appellants, submitted that the Government was competent to issue the impugned order both on the ground that Rule 66 of the Rules enables the Government to do so and also on account of the fact that the operation of Rule 3A is stayed by an interim order in some of the writ petitions challenging the 1990 and 1991 Rules. Dilating on this aspect, the learned counsel argued that when Rule 3A is stayed, it is obvious that the same would not operate and that therefore there is no impediment for an executive order to step in the area relating to the grant of lease for quarrying granite. It was further argued that even otherwise Rule 66 of the Rules is wide enough to relax the provisions of Rule 3A of the Rules in which event, the other Rules including Rule 3 would hold the field. The learned counsel also made certain other submissions with reference (o the circumstances leading to the passing of the order and the like. The same would be adverted to little later.
11. At this stage, it will have to be seen as to whether the fact that the operation of Rule 3A is stayed will make any difference to the well established principle that an area covered by a statutory rule cannot be superseded by an executive order. At this juncture it is necessary to examine the impact of stay order on the “existence” of the Rules. In this connection, the decision of the Supreme Court in M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras, throws a lot of light. The Supreme Court while considering the question relating to the effect of stay order, in the said decision, has, among other things, held as under (at page 1444) :
“While considering the effect of an interim order slaying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence.”
12. We are aware that the Supreme Court
was considering the effect of an order staying the operation of a judicial order. However, the principle laid down by the Supreme Court mutatis mutandis applies in relation to the stay of operation of a Rule also. As rightly pointed out by Sri Ramesh, learned counsel for some of the respondents, the stay of the operation of Rule 3A will not have the effect of obliterating the same from the body of ruies. We may also point out here that the learned counsel Sri Ramesh has brought to our notice an orderdated 14-3-1991 passed by the Division Bench in W.Ps. Nos. 16283 to 16289 of 1990 wherein, the Division Bench has passed an order as under :
“The stay is vacated to this extent :
In all cases the Government could consider the application for grant of lease except where the writ petitioners are applicants for grant of licence as on the date of filing of the writ petitions.
I.As. III, V, VI and VII ordered.”
However, it was argued for the appellants that the said order relates to the said cases and interm stay has been ordered in quite a good number of cases. Though we find some force in the submission made by Sri Ramesh with reference to the orderdated 14-3-1991 in W.P. Nos. 16283 to 16289 of 1990 and which order is culled out hereinabove, we do not propose to rest our conclusions on that ground in the light of the submissions made for the appellants as above. However, as pointed out earlier, the stay of the operation of Rule 3A will not have the effect of obliterating the same from the set of rules, viz., Karnataka Minor Mineral Concession Rules, 1969.
13. If that be so, it will have to be next seen as to whether the submission made by Sri Chidambaram with reference to Rule 66 of the Rules is acceptable. Rule 66 of the Rules reads as under :
“Relaxation of rules in special cases– In cases where the Government is of the opinion that public interest so requires, it may authorise the grant of a quarrying lease or a quarrying permit on such terms and conditions other than those prescribed in these rules, as the Government may, by order, specify :
Provided that notwithstanding anything contained in these rules such safeguards, territorial, financial or otherwise may be provided to the lessees with a view to safeguarding the interest of any industry or trade in order to avoid unhealthy competition among the lessees, and to prevent any fall in the trade and to see that the minor mineral is exploited in a scientific and a systematic manner.”
13.1. Arguing with reference to the above Rule, the learned Senior Counsel Sri Chidambaram contended that the said Rule enables the Government to relax Rule 3 A also provided the conditions laid down therein are satisfied. Dilating on this aspect, the learned Senior Counsel pointed out that the preamble to the impugned Government order itself sets out the circumstances under which the Government was constrained to issue the same. It is pointed out that in the context of the stay of the operation of Rule 3A, the Government had to explore the ways and means of finding the avenue by which it could legitimately earn the badly needed foreign exchange and at the same time scrupulously maintaining obedience to the order of the Court staying the operation of Rule 3A. The learned Senior Counsel pointed out that the said order is keeping in tune with the minutes of meeting held under the Chairmanship of the Joint Secretary (Mines), Union Government on 25-9-1989. The learned Senior Counsel has invited our attention to the various paras of the minutes of the meeting and argued that the Karnataka Government was only taking leaf out of the book of Tamil Nadu Government and Andhra Pradesh Government. It is therefore contended that it is not at all possible to hold that the change in the policy decision as reflected in the impugned Government order was made either arbitrarily or with an ulterior motive. In this connection, the learned senior counsel drew our attention to the decision of the Supreme Court in Kumari Shrilekha Vidyarthi etc. v. State of U.P., . In para 29 therein the Supreme Court has held as under :
“It can no longer be doubted at this point of time that Art. 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional (See Ramana Dayaram Shetty v. International Airport Authority of India and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir . In Col. A. S. Sangwan v. Union of India, , while the discretion to change the policy in excercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Art. 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Art. 14 and the requirement of every State aciion qualifying for its validity on this touchstone, irrespective of the field of activity of the State, has long been settled. Later decisions of this Court have reinforced the foundation of this tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose.”
Our attention is also invited to certain observations made by the Supreme Court in the decision in Ch. Tika Ramji v. State of Uttar Pradesh, . The learned Senior Counsel submitted that the scrutiny by the Court should be oriented with reference to the question as to whether the Government has or has not acted reasonably or arbitrarily and whether the Government was actuated by oblique motive. The learned senior counsel also took us to certain passages in Wade’s “Administrative Law” particularly at pp. 355, 362 and 364 therein in support of his submission and with reference to the scope of judicial review. The learned senior counsel also has placed reliance on the decision in Asif Hameed v. State of Jammu and Kashmir, , in support of his submission that the scope of judicial review is circumscribed by certain restrictions. In particular, the learned counsel has placed reliance on para 19 therein. At para 19 of the said decision, the Supreme Court has held as under:
“When a State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the Court must strike down the action. While doing so the Court must remain within its self-imposed limits. The Court sits in judgment on the action of a co-ordinate branch of the Government. While exercising power of judicial review of administrative action, the Court is not an appellate authority. The Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.”
The learned senior counsel also focussed our attention to certain paras in the writ petitions to contend that the petitioners are not ready to swear by Rule 3A and at the same time they are attacking the Government order on the ground that the same is opposed to Rule 3A. The learned senior counsel submitted that the policy being adopted by the petitioners is like that of a person who is ready to strike but is afraid to wound. In sum, the learned senior counsel submitted that the totality of the circumstances marshalled by him would go to show that it was in public interest that the Government order was passed and that the same cannot he held to have been issued either arbitrarily or with an ulterior motive and that therefore, it was perfectly permissible for the Government to issue the same invoking Rule 66 of the Rules. The learned senior Counsel added that while passing the order impugned, the Government has, in substance, reiterated the resultant effect of the operation of Rule 3A.
14. Learned Senior Counsel, Sri H. B. Dafar, the learned counsel, Sri Udaya Holla in their arguments on the aforesaid aspect, apart from taking us to certain factual details have, in substance, reiterated the submissions made by Shri Chidambram.
15. On a careful consideration of the submissions made by the learned Counsel and alluded to hereinabove, we are of the view that the legal propositions with reference to the scope of judicial review are well-founded and that therefore, it is not necessary to dilate on the same in greater details at this stage. At this stage it would he convenient to see as to whether the Government had the legal competence to issue the order impugned in the aforesaid writ petitions.
16. As pointed out earlier, the submission of Shri Chidambaram, learned Senior Counsel with reference to the legal competence of the Government to issue the order impugned is two fold. We have pointed out earlier as to how the stay of the operation of Rule 3A will not make any difference to the well settled legal propositior that the area covered by a statutory rule cannot be interfered with by an order, unless of course, the rule itself empowers passing of such an order. However, it is the submission of the learned Senior Counsel Sri Chidambaram that “stay” or “no stay” the power to relax any other rule including Rule 3A in the Rules can be had by invoking Rule 66, provided the relaxation is necessitated in public interest and that the judicial review of such an order will have to be tested by the touchstone of the principles referred to in the decisions alluded to earlier. This submission’indced requires a close scrutiny. Sri Chidambaram, is right in contending that while interpreting a legislative enactment or a statutory rule attempt should be made to lean in favour of an interpretation which promotes the constitutional validity of such an enactment or a Rule.
17. We have culled out earlier Rule 66 of the Rules. At this juncture, even at the risk of repetition it is necessary to cull out the same here again. It reads as under ;
“Relaxation of rules in Special Cases– In cases where the Government is of the opinion that public Interest so requires, it may authorise the grant of a quarrying lease or a quarrying permit on such terms and conditions other than those prescribed in these rules, as the Government may, by order, specify :
Provided that notwithstanding anything contained in these rules such safeguards, territorial, financial or otherwise may be provided to the lessees with a view to safeguarding the interest of any industry or trade in order to avoid unhealthy competition among the lessees, and to prevent any fall in the trade and to see that the minor mineral is exploited in a scientfic and a systematic manner.”
At this juncture only it is necessary to reproduce para 1 of Rule 3A. It reads as under :
“Notwithstanding anything to the contrary contained in these rules, no lease for quarrying black, pink, red, green, yellow or multicoloured granite shall be granted or renewed”.
Then again Rule 3 of the Rules reads as under :
“Restrictions on grant of quarrying lease–
(1) No quarrying lease shall be granted to any person other than an Indian Citizen except with the prior approval of the Government.
(2) No quarrying lease shall be granted in respect of any land notified by Government as reserved for use by Governmnt or for any other public or special purpose.
(3)No quarrying lease shall be granted in respect of any specified minor mineral, except with the prior approval of the Controlling Officeil.
(4) Quarries may, at the discretion of the Controlling Officer, be leased out by calling for tenders or by holding public auction.”
A careful perusal of Rule 3 on the one hand and Rule 3 A on the other if read together will clearly go to show that Rule 3 deals with restrictions on the grant of quarrying lease other than the lease for quarrying granite of different colours. In other words the rules contain two separate provisions, one relating to the grant of quarrying lease, other than granite and the other relates to the lease for quarrying granites. In the context of the aforesaid two rules, it is clear that it is the policy of the rule making body to keep the lease for quarrying granite distinct and separate. What is more siginficanl to notice is that Rule 3A contains, non obsiante clause. The non obstatite clause makes it manifestly clear that the lease for quarrying granite will have to he made only in the way and manner as indicated [herein, notwithstanding anything to the contrary contained in any other rule. As pointed out earlier, it is in the nature of an injunction ordained by subordinate legislation. If therefore the submission made by the learned senior Counsel Sri Chidambaram is accepted, the non obstante clause will be rendered meaningless. Further it is also pertinent to notice here that Rule 66 makes a reference to the relaxation of terms and conditions prescribed by the rules relating to the grant of quarrying lease or quarrying permit, but does not refer to the lease for quarrying granite which is kept distinct by a separate rule viz., Rule 3A. If one looks at the history of Rule 3A eversince it was inducted in 1979 one will not fail to notice the determined policy of the Government to keep the lease for quarrying granite distinct.
18. Sri Chidambaram, the learned Senior
Counsel submitted that Rule 66 takes within
its sweep to relax every other rule in the
context of the language employed therein. It
is pointed out by the learned Senior Counsel
that the content of every rule, in substance,
and effect is a term and condition prescribed
by the rule and the same would include among
other things the restrictions as to whom the
lease should be granted.
19. We are unable to agree with the learned Senior Counsel that the content of every rule is a condition of the rule. It is necessary to notice here that the rules prescribe as to whom all leases can be granted. The rules also prescribe the terms and conditions under which such leases can be granted. In that context, it appears to us that the expression “terms and conditions other than those prescribed in the rules” employed in Rule 66 cannot be stretched to the extent canvassed by the learned senior Counsel, If such was the intention of the rule making authority as canvassed by the learned senior Counsel. Sri Chidambaram, the wording would have been indeed different. If the intention was to vest in the Government, the power to exempt grant of lease from the operation of every provision in certain cases, ihe language would have been indeed different. In fact, the decisions of the Supreme Court in P. J. I rani’s case AIR 1961 SC 173 and Jalan Trading Company’s case cited at the Bar by Sri Chidambaram are cases where there were provisions vesting power to exempt from the operation of certain provisions of the Act. It is needless to say that the interpretaton of a statute hinges upon the language used therein. Under these circumstances, we are of the view that the said decisions are not at all applicable in the context of the language employed in Rule 66 of the Rules. We may also mention here that as pointed out by Sri Ramesh, learned counsels for some of the respondents that there is a specific provision viz., Rule 20 prescribing conditions. Rule 20 commences as under :
“Every quarrying lease shall be in Form No. E and shall include the following conditions namely”:–
20. It was argued by the learned counsel, Sri Ramesh that the correct interpretation of Rule 66 would be to tag the expression “terms and conditions other than those prescribed in these rules” to R. 20, which prescribes the conditions for quarrying. We find some force in the submission made by Sri Ramesh. However, it is not necessary to dilate further since as we have pointed out earlier. R.66 cannot be invoked to relax the elgibility as to the grant of lease. We are indeed of the view that the expression “terms and, conditions other than those prescribed in the rules” is referable to the terms and conditions attached to lease and does not refer to a condition precedent for elibility. In fact, the learned single Judge has, in the course of his order, succinctly dealt with this aspect, at para 6 and has held that eligibility under Rule 3A cannot be relaxed by invoking Rule 66. Further there is also one more difficulty in accepting the submissin made by the learned Senior Counsel Sri Chidambaram. If the submission made by the learned Senior Counsel is carried to its logical conclusion it may oven mean that it would be permissible for the Government to relax the entire body of Rule and to allow the lease entirely on the basis of a Governmnt Order. It is needless to say that an interpretation which may lead to an anamolous situation, will have to be avoided.
We may also point out here that the State Government has not challenged the order of the learned single Judge. In fact, Sri Soma-yaji, learned High Court Government Pleader representing the State Government submitted that the State Government has not challenged the order of the learned single Judge and as such accepted the same and that he has nothing more to add.
21. Thus for the reasons stated hereinabove, we have no hesitation to hold that the Government had no power to issue the order, impugned in the aforesaid writ petitions. In this view of the matter, we do not think it necessary to go into the question as to whether the G.O. in question is actuated by oblique motice or for that matter, the same is arbitrary. Further we answer point No. 2 by holding that the stay of operation of Rule 3A will not have the effect of obliterating the same and the ambit of Rule 66 of the Rules is only to the extent as explained hereinabove.
22. Point No. 3: Under this point this Court is required to see as to whether the petitioners were not competent to file and prosecute the writ petitions by way of public interest litigation.
23. As pointed out by the Supreme Court Court in the decision in Janata Dal v. H. S. Chodhary, lexically the expression “public interest litigation “means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities arc affected.
It is pointed out in the said case that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold. In paras 61 and 62 therein, the Supreme Court has observed as under :
“The traditional syntax of law in regard to locus standi for “a specific judicial redress, sought by an individual person or determinate class or identifiable group of persons, is available only to that person or class or group of persons who has or have suffered a legal injury by reasons of violation of his or their legal right or a right legally protected, the invasion of which gives rise to actionability within the categories of law. In a private action, the litigation is bipolar; two opposed parties are locked in a confrontational controvesy which pertains to the determination of the legal consequences of past events unlike in public action. The character of such litigation is essentially that of vindicating private rights, proceedings being brought by the persons in whom the right personally inhere or their legally constituted representatives who are thus obviously most competent to commence the litigation.
In contrast, the strict rule of locus slandi applicable to private litigation is relaxed and abroad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busy or a meddlesome interloper; since the dominant object of Public Interest Litigation is to ensure observance of the provisions of the Constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like actio popularis of Roman Law whereby any citizen could being such an action in respect of a public delict.”
24. In the decision in Subbhash Kumar v. State of Bihar, the Supreme Court has pointed out that public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. A similar view is expressed by the Supreme Court in the decision in Chhetriya Pardushan Mukthi Sangharsh Samithi v. Stale or U.P., .
25. Pressing into service the observations made by the Supreme Court in its decisions and the decision of the Gujarat High Court in Babubhai Jashbhai Patel v. Union of India, New Delhi, , it was contended on behalf of the appellants that the present petitioners were not competent to file and prosecute the writ petitions by way of public interest litigation. On the other hand, it was argued on behalf of the respondents (writ petitioners) that the facts and circumstances of the case, do disclose a public interest and in that context it was permissible for the petitioners to the writ petitions to file and prosecute the writ petitions. In this connection, reliance is placed on two decisions of the Division Bench of this Court viz., the decision in Rudraiah Raju v. State of Karnataka and the decision in V. Gokulkrishna v. M. C. Nanaiah, .
26. We have given our anxious considerations to the submissions made on either side with reference to this aspect. We have closely examined the contents of the writ petitions. It is seen that the main thrust of the case made out by the petitioners in their writ petitions is that the Government having realised that there are large deposits of granites of various colours in the Government lands in the State and that the said deposits have good export potential which if properly explored could earn huge foreign exchange and that the Government or the Corporation owned by it could earn revenue for the benefit of the public, enacted Rule 3A in the year 1979. It is stated that the same ensured that the granite deposits in Government lands were exploited only by the Government, or by the Corporation owned by the Government and the same is not utilised by private persons for making huge profits. It is also their case that the 1990 and 1991 Rules and in particular the latter made great dent in the said policy and the same was made to oblige a few who are close to the corridors of the power. It is also their case that when the operation of 1990 and i99I Rules was stayed, the impugned Government Order was passed obviously with a view to nullify the stay order and to accomplish that design to favour a few persons who are close to the corridors of power. It is also their case that the modus operandi adopted by the Government in issuing the order in question would affect the revenue to the State or Corporation owned by the State Government. They have also alleged that large number of leases for quarrying granite have been granted within a day or two next after the Government order came to be passed.
27. It is a hard fact that 1990 and 1991 Rules are challenged in various writ petitions. If both of them are struck down it is obvious that the 1979 Rules which is more rigid with reference to the disposal of granite would get revived. It is also necessary to notice here that even in 1990 Rules a preference is required to be given ordinarily, to a Corporation owned or controlled by the State Government as provided in Rule 3A(7). In the context of these circumstancs, it is not possible to say that there is no “public interest content “in the petitions filed by the writ petitioners. The materials on record also do not disclose any personal interest on the part of the writ petitioners. In other words, the materials on record do not warrant any inference that the petitioners have got any axe to grind for their own self-aggrendisement. In fact, the learned single Judge succinctly dealt with this aspect at para 8 of his order and has observed as under:
“Incidentally I must refer to one contention raised by respondents as to locus of petitioners. The concept of public interest litigation has changed quite a good deal in recent times. Although at one time it is stated that it is only in cases where a person himself was aggrieved party, he alone could raise a dispute, later on that principle was relaxed to state that any interested person can take part in it. in the matter of distribution of largesse of the State if the Government deviates from the norms set out by it, any citizen interested can certainly approach this Court for seeking the relief in an appropriate form and I do not think the contention raised on behalf of the State that the petitioners have no locus in these cases stands to reason.”
28. A Division Bench of this Court in a recent decision in Gokulkrishna’s case, ILR 1993 Kant 1615 had occasion to deal with the aspect relating to public interest litigation and the Division Bench after considering the various decisions of the Supreme Court and the earlier decisions of this Court has held that even an ordinary citizen could approach the Court challenging a Governmental action if the said action is contrary to the public interest. It is pointed out by the Division Bench that this Court is concerned primarily as to whether there has been any infirmity in the “decision making process” of the State while awarding a contract and that the purpose is to find out whether the Government has taken care to safeguard the public interest. It is further held therein that the decision making process resorted to by the Government would disclose whether the Government acted objectively and whether the process was such that it would prevent favouritism in the manner of awarding contract and whether the Government acted “free from bias, discrimination and under the exigencies of the situation then existing to be just and proper”. It is also pointed therein that high technical rules of pleading should not control the public interest litigation and a person who espouses the cause of public interest, has no personal interest in the litigation and that when he agitates a public cause and the impugned action is of the Government, he has certain disadvantages with regard to the relevant material. In sum, it is pointed out by this Court that “public interest is the key note to the Court’s approach.”
29. We have earlier extracted the observations of the Supreme Court in the decisions in Janata Dal’s case, and in Chhetriya Pradushan Mukhti Sangharsh Samithi’s case, . In fact, Sri Chidambaram took us in greater detail to the decision in Babubhai Jashbhai Patel’s case . In the said case, the dispute was between the State and the Centre regarding payment of royalty. Writ petition was filed by private citizens by way of public interest litigation as they felt that the royalty paid to State was extremely low and therefore, notifications issued under Section 6A(4), Oilfields (Regulation and Development) Act, be quashed as illegal, invalid and unconstitutional. In the context of the facts of the said case, it was held that the High Court could not entertain a petition in view of Art. 131, and also because, relief claimed, it” granted, would have disastrous consequences on State revenue as there would be no legal authority whereby State could recover royalty from Centre.
From what is stated hereinabove, it is clear that the ratio laid down by the Gujaral High Court in the facts of the said case cannot be made applicable to the facts of the instant case at all. The reason as to why such a petition like the one which was filed before the Gujarat High Court is not maintainable, has been explained by their Lordships of the Gujarat High Court in the said decision. Such, however, is not the situation here. In our opinion, the situation in the instant case, is more akin to the one dealt with by the Division Bench of this Court in Gokulkrishna’s case also throws light on this aspect.
30. Thus applying the tests laid down in , the various decisions of the Supreme Court and the earlier decisions of this Court, we have no hesitation to hold that the petitioners have locus standi to file and prosecute the writ petitions by way of public interest litigation. Point No. 3 is answered accordingly.
31. The only other aspect which deserves consideration is the aspect relating to impleading of parties. It is necessary to point out here that none of the appellants were parties to the writ petitions. The petitioners to the writ petitions had not made them as parties to the writ petitions. However, the appellants have preferred the appeals with the leave of the Court. We may also point out here that their locus standi is not questioned by the respondents. No doubt, the appellants ought to have been made parlies to the proceedings to the writ petitions since they had obtained the leases pursuant to the impugned Government Order. It is seen that the learned single Judge has decided the cases on merits and has quashed the lease. Therefore, they ought to have been heard in the matter. As rightly pointed out by Sri H. B. Datar, learned senior counsel they were the persons whose interests were likely to be affected and that therefore they ought to have been made parties to the writ petitions. This position is well established in the light of the decisions in Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar, and the decision in Prabodh Verma v. State of Uttar Pradesh, . However, we find that the appeals arise out of the petitions filed under Art. 226 of the Constitution. They are not the appeals from a Court subordinate to the High Court. They are intra-Court appeals from the order of the learned single Judge to a Division Bench. Therefore, the appellants have been given all the opportunities to put-forth their cases which they would have putforth, had they been made parties to the writ petitions. Further, the appellants have not sought for remand. In the context of these circumstances and having regard to the fact that the learned single Judge has also decided the matter on merits and having regard to the fact that the learned counsel on either side have also addressed arguments on merits, we have chosen to hear the matter on merits and decided the matter on merits. We are satisfied that the principles of natural justice are fully complied with.
32. For the reasons stated hereinabove, all these appeals are dismissed. In the facts and circumstances of the case, we make no order as to costs.
33. Appeals dismissed.