ORDER
A.K. Ganguly, C.J.
1. This Writ Petition has been filed by M/s. Kalinga Mining Corporation and the main prayer is to quash the approval to the grant of mining lease in favour of the legal heirs of late Dr. Sarojini Pradhan over an area of 171.226 hectares in village Kalaparbat in the district of Keonjhar given by the Central Government for a period of 20 years under Section 5(1) of the Mines and Minerals ( Development and Regulation) Act, 1957.
2. The Learned Counsel for the Petitioner has raised a preliminary objection about maintainability of the mining lease application by the legal heirs of Dr. Sarojini Pradhan and contended that on the death of Dr. Pradhan, the application for mining lease filed by her abates and her legal representatives cannot maintain the same.
It appears that the impugned order of the Central Government was passed pursuant to the Judgment of this Court dated 2.7.2001 in OJC No. 11537 of 1999.
3. The relevant facts of the case are that the Petitioner applied before the State Government for prospecting licence on 27.10.1953 and on that application the State Government on 15.9.1961 passed orders granting prospecting licence to the Petitioner in respect of an area of 480 acres in Kalaparbat Hill range of Keonjhar district subject to compliance of the lease stipulations. It may be noted that the Petitioner also applied to the State Government for grant or mining case for iron and manganese ore over 420 acres in kalaparbat Hill range or Keonjhar district. As the same was not considered by the State Government, the Petitioner filed a revision before the Central Government. The Central Government vide its letter dated 23.7.1962 intimated the State Government that since prospecting licence was not granted in favour of the Petitioner, the grant of mining lease application for the same area cannot be considered unless the prospecting licence is executed. Thereafter, the Central Government disposed of the it revision filed by the Petitioner by directing the State Government to consider the Petitioner's mining lease application dated 4.9.1961 on merit by 1.1.1964.
4. But no order was passed by the State Government within the time fixed by the Central Government and thus the mining lease application dated 4.9.1961 filed by the Petitioner was deemed to have been refused. Thereafter by notification dated 20.7.1965 an area of 438.50 acres of Kalaparbat Hill Range area was thrown open by the State Government for grant of mining lease under Rule 58(1) of the Mineral Concession Rules, 1960. On 10.9.1965, six applicants including the Petitioner and Dr. Pradhan submitted their applications for grant of mining lease. But the mining lease applications of the Petitioner and Dr. Pradhan were not disposed of by the State Government within the statutory period and therefore, both of them separately moved the Central Government in revision. By Order Dated 7.4.1967, the Central Government allowed the revision petitions of the Petitioner as well as that of Dr. Pradhan directing the State Government to consider their mining lease applications. The State Government again delayed the disposal of the mining lease application for which the Petitioner filed another revision petition before the Central Government on 22.7.1967. The Central Government rejected the revision by Order Dated 13.10.1967.
5. Being aggrieved, the Petitioner filed OJC No. 855 of 1969, seeking a direction from this Court fur grant of mining lease in its favour. In that Writ Petition Dr. Pradhan intervened and this Hon'ble Court by an Order Dated 21.6.1971 dismissed the said Writ Petition. Pursuant to the order of the Central Government dated 7.4.1967, the State Government on 3.9.1971 for the first time, passed an order recommending grant of mining lease in favour of Dr.Pradhan and sought for approval of the Central Government under Section 5(1) of the Mines and Minerals (Development and Regulation) Act, 1957. By Order Dated 18.1.1972 the Central Government refused to accord its approval in favour of Dr. Pradhan and the State Government on 25.4.1972 requested the Central Government for the second time for grant of approval to its recommendation made in favour of Dr. Pradhan. But the Central Government by its letter dated 29.12.1972 directed the State Government to reject the mining lease application of Dr. Pradhan. Thereupon the State Government on 8.6.1973 rejected all the pending mining lease applications including the application of Dr. Pradhan and that of the Petitioner.
6. Then both the Petitioner and Dr. Pradhan filed their respective revision petitions before the Central Government. The Central Government by its Order Dated 2.5.1978 rejected the revision petition filed by Dr. Pradhan, but allowed the revision filed by the Petitioner with a direction to the State Government to pass a fresh order on merit. At that juncture, Dr. Pradhan moved a Writ Petition being OJC No. 829 of 1978 before this Hon'ble Court challenging the order of the Central Government dated 2.5.1978. The said Writ Petition came up for hearing before a Division Bench of this Court and by Judgment dated 4.9.1987 the Division Bench allowed the Writ Petition of Dr. Pradhan by directing the Central Government to grant mining lease by passing a speaking order after giving all the parties an opportunity of hearing in the matter. Relevant portion of the said direction given by the Division Bench of this Court runs-as follows.We direct the Central Government to re-consider the question of grant of approval for the grant of lease of iron ore and manganese in respect of the area after giving all parties concerned an opportunity of hearing. The mode and manner of hearing shall be regulated by the Central Government and it shall convey it's decision by a speaking order, i.e., by giving reason for the decision.
On 10.9.1987 Dr. Sarojini Pradhan died.
7. An application for substitution by her legal heirs was filed in the revision application which was previously filed by Dr. Pradhan and was pending before the Central Government. In the aforesaid Writ Petition, i.e., OJC No. 829 of 1978, a Misc. Case being Misc. Case No. 1773 of 1988 was filed wherein the aforesaid fact of death of Dr. Sarojini Pradhan and the fact of application for substitution of the legal heirs of Dr. Sarojini Pradhan were considered and a direction was given by this Court, on 28.4.1988 in the said Misc. Case, upon the Central Government to inform the parties about the stage of revision and the date to which the revision was posted for hearing. It was made clear that the legal heirs of Dr. Pradhan may appear before the Central Government on 16.5.1988 to take a direction regarding hearing of the revision application. With the above direction, the misc. case was disposed of. Another Misc. Case being Misc. Case No. 1977 of 1988 was filed in the aforesaid OJC No. 829 of 1978 and on 11.5.1988, the following order was passed in Misc. Case No. 1977 of 1988.
Heard.
On 28.4.1988, on a complaint made by the Petitioner that no action had been taken by the Central Government to implement our Judgment in OJC No. 829/87, we directed that the legal representatives of the deceased Petitioner would appear before the Central Government on 16th May, 1988 to take steps regarding hearing. An application has now been filed stating that the legal representatives could not appear before the Central Government on that day due to difficulties stated in the petition. The Counsel for the parties now agree that the legal representatives of the deceased-Petitioner would appear before the Central Govt. on the 6th of June, 1988 on which day a date of hearing shall be fixed.
The misc. case is disposed or accordingly.
It may be noted here that in both the Misc. Cases the Writ Petitioner was a party and was heard.
8. In the meantime, another matter in respect of grant of mining lease numbered as OJC No. 1431 of 1980 was filed. A Division Bench of this Court repelled the contention of the State that on the death of Dr. Pradhan her Writ Petition will abate.
Thereafter on 11.5.1990 the Central Government conveyed to the State Government its approval of grant of mining lease in favour of the legal representatives of Dr. Pradhan. Then the State Government by its Order Dated 24.5.1990 asked the legal representatives of Dr. Pradhan to furnish certain information and documents regarding grant of mining lease. Thereupon the legal representatives of Dr. Pradhan by letter dated 26.6.1990 furnished the information and the documents to the State Government. At this stage, the Writ Petitioner filed OJC No. 4316 of 1990 challenging the Order Dated 11.5.1990 passed by the Central Government whereby the Central Government approved the recommendation of the State Government for grant of mining lease in favour of legal representatives of Dr. Pradhan. In OJC No. 4316 of 1990, this Court passed an interim Order Dated 18.12.1990 staying operation of Central Government's. Order Dated 11.5.1990. In the meantime, on 1.4.1991 Rule 25A was introduced in the Mineral Concession Rules, 1960, which, inter alia, provides that the legal representatives of the original applicant may proceed with the application for grant of mining lease in their favour. On 13.12.1996 this Hon'ble Court disposed of OJC No. 4316 of 1990 directing the State Government to reconsider the matter and pass a fresh speaking order after hearing the Petitioner, legal representatives of Dr. Pradhan and one M/s. Balasore Minerals. By the said order, this Hon'ble Court quashed the order of approval of the Central Government for grant of mining lease in favpur of the legal heirs of Dr. Pradhan. Then the State Government again by its Order Dated 5.2.1999 recommended to the Central Government for grant of mining lease in favour of 171.226 hectares in favour of the legal representatives of Dr. Pradhan for a period of 20 years. The Court clearly indicated that the Petitioner as well as M/s Balasore Minerals are unsuitable for grant of mining lease. Thereafter the Central Government heard the parties on 18.3.1999 and on 8.4.1999 approved the recommendation of the State Government for grant of mining lease in favour of legal representatives of Dr. Pradhan. Thereupon terms and conditions were offered by the State Government to the legal representatives of Dr. Pradhan on 8.7.1999 and on 20.7.1999 the legal representatives of Dr. Pradhan accepted the terms and conditions of the State Government.
9. The Petitioner again filed OJC No. 11537 of 1999 challenging the Order Dated 8.4.1999 passed by the Central Government. This Hon'ble Court vide its Judgment dated 2.7.2001 quashed the order of the Central Government dated 8.4.1999 and remanded the matter to the Central Government once again to decide the matter afresh. In that Judgment it was clearly held by a Division Bench of this Court that of the death of original applicant her application for prospecting licence or mining lease does not abate and the Learned Judges referred to Rule 25A of the Mineral Concession Rules, 1960 in support of their view. This Court also held the same to be a question of law and the issue has become final and shall not be reopened and the Government of India shall not further deal with this issue now on remand. This was held by a Division Bench of this Court in paragraph 11 of the Judgment. Against the said order, the Petitioner filed a Special Leave Petition before the Hon'ble Supreme Court and the Hon'ble Supreme Court was pleased to dismiss the same by an Order Dated 24.8.2001. A copy of the Special Leave Petition has been filed before us and from the said SLP it appears that the question or maintainability of the mining lease application by the legal representatives of Dr. Pradhan was raised before the Hon'ble Supreme Court, but the Hon'ble Supreme Court dismissed the SLP.
10. In 28.8.2001 and 13.9.2001 the Central Government granted hearing to the Petitioner and also the legal representatives of Dr. Pradhan in terms of the order or this Court dated 2.7.2001 and the Central Government passed a detailed reasoned order on 26.9.2001 accepting the proposal of the State Government for grant of mining lease to the legal representatives of Dr. pradhan. The said order at Annexure-1 is impugned in this Writ Petition which was filed in March, 2002.
11. During the pendency of this Writ Petition on 9th September, 2003 another Judgment was delivered by the Hon'ble Supreme Court in the case of Saligram Khirwal on the right of the legal representatives to make application for mining lease after the death of the original applicant. After that Judgment, a misc. case being Misc. Case No. 464 of 2004 was filed in this Writ Petition by the Petitioner seeking amendment, inter alia, on the ground that the legal representatives of Dr. Pradhan have no right to pursue the mining lease application in view of the decision of the Hon'ble. Supreme Court in Saligram Khirwal v. Union of India and Ors. reported in : (2003)7SCC689 .
12. In the backdrop of these facts, Learned Counsel for Petitioner urged that the mining lease application by the legal heirs of Dr. Pradhan is not maintainable. It was urged that the Judgment of this High Court dated 2.7.2001 holding that the legal heirs of Dr. Pradhan are entitled to maintain the mining lease application, and against which SLP was dismissed by Hon'ble Supreme Court, is based on two earlier Judgments of the Orissa High Court in OJC No. 1431 of 1980 dated 12.5.1989 and OJC No. 1269 of 1982 dated 23.2.1993. It was contended that the Judgment which was rendered on 23.2.1993 in OJC No. 1269 of 1982 was challenged in appeal before the Hon'ble Supreme Court and the Hon'ble Supreme Court by its Judgment dated 9.9.2003 was pleased to set aside that Judgment of the Orissa High Court and came to a finding which has the effect of re-opening the binding and final Judgment dated 2.7.2001 between the Petitioner and the legal heirs of Dr. Pradhan in OJC No. 11.537 of 1999.
13. Before examining this contention, the ratio of Saligram Khirwal's case (supra) has to be properly appreciated. In that case, the legal heirs of Dr. Pradhan were parties, but the Writ Petitioner was not a party and that Judgment was rendered between different parties. In that Judgment, the Hon'ble Supreme Court noted the submission made by the Learned Counsel for the Appellant in paragraph 3 at page 690 of the report. The submission was that consequent upon the death of Dr. Pradhan the High Court should have dismissed the Writ Petition as it had abated since there was no occasion for allowing substitution in the facts of that case. To that, it was argued by the Learned Counsel for the Respondents that the right to sue survives and the claim of the parties should be considered as has been done by the High Court. In paragraph 5 at page 690 of the report? the Learned Judges noted the argument of the Learned Counsel for the Respondents which traces the history of legislative changes as enacted in Rule 25A of the Mineral Concession Rules, 1960, which was amended with effect from 1.4.1991. The argument of the Learned Counsel for the Respondents is that such amendment is clarificatory. The Learned Judges, however, expressed their doubt about that. In paragraph 5, the Learned Judges held that Rule 25A does not have any applicability to the facts of that case and the Learned Judges made it very clear that the legal position in that case has to be determined de hors Rule 25A.The Learned Judges also held in paragraph 11 at page 692 of the report 'Rule 25A has no applicability to the racts or the case at hand'. In paragraph 12 at page 692, the Learned Judges held that on the death of Dr. Pradhan 'all that survived to her legal heirs was to make an application afresh and have the same considered in accordance with law'. Therefore, in that Judgment, it was made clear (i) that the said Judgment was rendered without taking into consideration the purport of Rule 25A and in the said Judgment the Learned Judges held (ii) that on the death of Dr. Sarojini Pradhan some right survived in favour of her legal heirs and they have to make application afresh and same has to be considered in accordance with law. Therefore, it is possibly not correct to say that on the death of an applicant for mining lease there is no surviving right in favour of the legal heirs of the applicant.
14. In this connection Rule 25A of the Mineral Concession Rules, 1960 (hereinafter referred to as the 'said Rules') is relevant.
The said Rule is as follows:
25A. Status of the grant on the death of applicant for mining lease- (1) Where an applicant for grant or renewal of mining lease dies before the order granting him a mining lease or its renewal is passed, the application for the grant or renewal of a mining lease shall be deemed to have been made by his legal representative.
(2) In the case of an applicant in respect of whom an order granting or renewing a mining lease is passed, but who dies before the deed referred to in Sub-rule (1) of Rule 31 is executed, the order shall be deemed to have been passed in the name of the legal representative of the deceased.
15. A perusal of the provisions of Rules 25A(1) and 25A(2) should show that in both the rules a deeming provision has been introduced. The said deeming provision has been introduced keeping in mind the period which elapses between the making of an application for mining/renewal of the mining lease and the actual grant/renewal of such application. Therefore, the legislature has made it clear that the death of the applicant during the pendency of the application, either for grant/renewal of the mining lease or execution of such lease, shall not invalidate the application. Rather by operation of law such application for lease shall be deemed to have been made by the legal representative as per Rule 25A(1) and in cases covered by 25A(2) the lease shall be deemed to have been executed in the name of the legal heirs of the original applicant.
16. Now the question is that in the instant case the mining lease application was made by Dr. Pradhan, but during the pendency of the lease application she died on 10.09.1987. At that time Rule 25A(1) was not on the statute book. But her legal representatives made an application before this Court vide M.C. No. 1773 of 1988 in O.J.C. No. 829 of 1978 and the Court, after hearing all the parties including the present Petitioner, passed an Order Dated 28.4.1988 directing the legal representatives of Dr. Pradhan to appear before the Central Government on 16.5.1988 and to take direction regarding hearing of the Revision Petition which was filed by Dr. Pradhan and was pending before the Central Government. Again another order was passed by this Court on 11.5.1.988 in Misc. Case No. 1977 of 1988 to the same effect.
17. The present Petitioner, as a party to both the Misc. Cases agreed to the substitution of the legal heirs in place of Dr. Pradhan in the Revision application which was pending before the Central Government and contested the hearing before the Central Government on that footing.
18. The final Judgment of the Division Bench of this Court dated 2.7.2001 discussed this question elaborately and one of the issues which was raised in the final Judgment is as follows:
Following the death or the original applicant, Dr. Sarojini Pradhan her entire application abates.
This issue has been discussed in paragraph 11 of the Judgment and the Court held that this question was considered by this Hon'ble Court in M.C. No. 396 of 1988 and also in the Judgment dated 23.2.1993 in O.J.C. No. 1269 of 1982 and the Learned Judges quoted the Judgment which was given by Order Dated 12.5.1989 in M.C. No. 396 of 1988 arising out of O.J.C. No. 1431 of 1980. This Court also quotes the said reasoning herein below:
In view of the above analysis of the facts and law, we have no hesitation to hold that on the death of the original Writ Petitioner the further proceedings in the matter of grant of mining lease shall be continued in the name of her legal representatives and that the view taken by the State Government that the Mining lease application of late Dr. Sarojini Pradhan the original Writ Petitioner would abate on her death is not correct. We, therefore, dispose of this Miscellaneous application directing the State Government to proceed with the matter accordingly.
19. As noted above, the SLP from the said Judgment of the Division Bench dated 2.7.2001 filed before the Hon'ble Supreme Court was also dismissed. In the instant case, the subsequent change of law made by the legislature cannot have any effect inasmuch as the Learned Judges of the Division Bench of this Court in coming to the aforesaid finding took note of the change in law i.e. amendment of Rule 25A and the same has been noted in the Judgment referred to above.
20. Therefore, the question is whether a Judgment which has become final inter-partes can be re-opened because of a subsequent Judgment between different parties on a question which was considered in that final Judgment and a decision has been taken. The answer to this question has to be in the negative in view of the principle of Res-judicata which is based on general principle of public policy about finality of litigation. On this aspect several Judgments have been cited by the Learned Counsel for the parties and the Court proposes to consider those which are directly relevant to the issue.
21. Reference may be made to the Full Bench decision of the Calcutta High Court in the case of Tarini Charan Bhattacharjee and Ors. v. Kedar Nath Haldar reported in AIR 1928 Cal. 777. (F.B) Chief Justice Rankin speaking for the Full Bench very lucidly laid down the principles of Res judicata at page 782 of the report in the following Words:.On the other hand it is plain from the terms of Section 11 of the Code that what is made conclusive between the parties is the decision of the Court and that the reasoning of the Court is not necessarily the same thing as its decision. The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and. the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or re-contesting that which has been finally decided.
22. The said decision in Tarini Charan was relied on subsequently by a Full Bench of the Punjab and Haryana High Court in the case of State of Punjab v. Nand Kishore reported in . In paragraph 20 at page 309 of that Judgment, Justice S.S. Sandhawalia (as his Lordship then was) speaking for the Full Bench observed:
If every lis between the parties is liable to be re-opened by a subsequent change of legal opinion, then all earlier litigation relevant thereto would always be in a flux. Learned Counsel for the Respondent was repeatedly invited to cite any authority which laid down that the declaration of a statute as ultra vires or the overruling of an earlier decision would re-open all the decided matters within the period of limitation flowing from the date of such decision, but he had frankly conceded his inability to cite any Judgment in support of his contention. There is, however, high authority to the contrary....
23. By saying so, Justice Sandhawalia referred to the decision in the case of Tarini Charan (supra). It may be noted here that in the instant case there is no decision by any subsequent Court about any law having been declared invalid or ultra vires. Therefore, the attempt in this case to re-open the concluded finding between the parties under the plea of a preliminary objection is even more inappropriate.
24. To the same effect is the Full Bench Judgment of the Jammu & Kashmir High Court in the case of Abdul Salam. v. State of Jammu &. Kashmir reported in Dr. A.S. Anand (as his Lordship then was speaking for the Full Bench laid down the following proposition:.The rights which have become final as a result of a Judgment delivered by a competent Court cannot be washed away by a subsequent interpretation in a different cause. The correctness or otherwise of the earlier decision is wholly irrelevant where the conditions for the application of the rule of res judicata are satisfied in the latter case....
25. In paragraph 7 of the said Judgment, the Learned Judge poseffa question whether an earlier erroneous Judgment can operate as res judicata or not and then answered the question by referring to the decision of the Supreme Court in the case of Mohan Lal Goenka v. Benoy Krishna Mukherjee reported in : [1953]4SCR377 and held that even an erroneous Judgment on a question of law operates as res judicata between the parties to it as the correctness or otherwise of a judicial decision has no bearing upon the question whether or not the decision operates as res judicata. Here, it cannot be said that the decision of the Orissa High Court dated 2.7.2001 in O.J.C. No. 11.537 of 1999 is erroneous. Assuming that it is erroneous even then it will operate as res judicata.
26. Justice Venkatachaliah (as his Lordship then was) in the case of D.P. Sharma v. State Transport Authority reported in : ILR1987KAR3255 held in paragraph 12 at page 3271 of the report as follows:
It is trite proposition that even inter partes, if the law laid down in a pronouncement is later over-ruled, as distinguished from it being reversed, its binding effect inter partes is not set at naught. The decision itself has to be assailed and got rid of in a manner known to or recognized by law.
27. A Division Bench of the Madhya Pradesh High Court in %B case of Smt. Hameeda Begum v. Smt. Champa Bai Jain and Ors. reported in 2004 AIHC 1990 held in paragraph 13 that a Judgment inter partes by a competent Court in a previous Writ Petition would operate as res judicata in a subsequent suit between the same parties where the issues directly involved in the two proceedings are the same irrespective of the fact whether or not the decision in the earlier Writ Petition was founded on a view contrary to the one subsequently expressed by the Supreme Court in a different case.
28. Reference can be made to the decision of the Supreme Court in the case of Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi reported in : [1960]3SCR590 . Justice Das Gupta speaking for a three Judge Bench of the Hon'ble Supreme Court in the vein explained the principles of res judicata in paragraph 7 of the Judgment and which I quote:
The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fad or a question of law-has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata, is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct.
In the case of Mathura Prasad Sarjoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy reported in : [1970]3SCR830 , the Learned Judges of the Supreme Court made ah exception to the aforesaid principle of res judicata only when it relates to the question of jurisdiction of the Court. In paragraph 9 at page 2259 of the report the Learned Judges held that a question relating to jurisdiction cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute, the Court held that it has no jurisdiction, that question will not operate as res judicata. Similarly if by an erroneous decision the Court assumes jurisdiction which it does not have under the statute, the question cannot operate as res judicata between the same parties whether the cause of action in the subsequent litigation is the same or otherwise. In the instant case, it is no body's contention that the Orissa High Court delivering the Judgment on 2.7.2001 in OJC No. 11537 of 1999 did not have the jurisdiction nor it has been contended, as it cannot be contended by the Petitioner that this Court decided its jurisdiction erroneously inasmuch as the jurisdiction of this Court was invoked by the Petitioner.
29. It may be noted that in the case of Mathura Prasad (supra) The ratio or the decision of the Full Bench decision or the Calcutta High Court in the case of Tarini Charan Bhattacharjee has been approved. Similar view has been expressed by the Supreme Court in the case of Supreme Court Employees Welfare Association v. Union of India and Ors. reported in : (1989)IILLJ506SC . In paragraph 24 of the Judgment the Learned Judges held that if a decision is on all abstract question of law, unrelated to the facts or the case, which gives rise to a right that cannot operate as res judicata. Similarly, the decision on the jurisdiction of the Court cannot operate as res judicata in a subsequent suit or proceeding. But if the question of law is related to the fact in issue an erroneous decision on such question of law operates res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same. In the instant case, the right of legal representatives of Dr. Pradhan to pursue the mining lease application after her death is a question of law which is related to the facts in issue and is certainly not an abstract question of law. Therefore, the decision of the Orissa High Court on this question and which has become final would operate as res judicata. The Learned Judges in Supreme Court Welfare Association also held in paragraph 23 of the said Judgment that when an SLP against a Judgment is dismissed by the Hon'ble Supreme Court, the Judgment becomes final and conclusive so as to operate as res judicata between the parties. In paragraph 28 of the said Judgment the Learned Judges have held that the doctrine of res judicata is a universal doctrine laying down the finality of litigation between the same parties. Therefore, when a particular decision has become final, it cannot be set at naught even on the ground that such a decision is violative of Article 14 of the Constitution. This shows the importance which has been attached by the Supreme Court to the principle of res judicata.
30. These principles have been very succinctly explained by the Supreme Court in one of its recent Judgments in the case of Bharat Sanchar Nigam Ltd. and Anr. v. Union of India and Ors. reported in : [2006]282ITR273(SC) . In paragraph 22 at page 21 of the report, the Hon'ble Supreme Court held that in our judicial system it is open to a Court of superior jurisdiction or strength before which a decision of a Bench of a lower strength is cited to overrule it. But this overruling would not operate to upset the binding nature of the decision on the parties to an earlier lis, for whom the principle of res judicata would continue to operate. But in tax cases the principle may be different. It, is obvious that we are not concerned with any tax case here.
31. Learned Counsel for the Petitioner in support of his preliminary ?Objection placed reliance on a few Judgments and obviously reliance was placed on the Judgment in the case of Saligram Khirwal (supra) and it was submitted that since the Judgment delivered by the Orissa High Court on 23.2.1993 in OJC No. 1269/82 was reversed by the Supreme Court and that Judgment formed part of the decision of the Orissa High Court's Judgment dated 2.7.2001 in OJC No. 11537/ 99, reversal of the Judgment in OJC No. 1269/82 will bring about an automatic reversal of the Judgment of the Orissa High Court in OJC No. 11537 of 1999. It is not possible to accept the aforesaid contention. The Orissa High Court while delivering its Judgment in OJC No. 11537/99 might have referred to the reasoning part of which has been reversed in another Judgment between different parties. That cannot collaterally bring about reversal of the Judgment in OJC No. 11537/99 between different parties and specially when the said Judgment dated 2.7.2001 has become final between the parties as the SLP against the same Judgment has been dismissed. The Court has already discussed the ratio in Saligram Khirwal. This Court, therefore, is of the opinion that even if in the said Judgment it was held that the legal representatives of a deceased applicant have some surviving rights and in that Judgment it was further held that the same is not an authority on Rule 25A.
32. Therefore, the finding given by this Court that the legal representatives have a right to file an application for substitution in place of the deceased applicant has become final between the parties, the same cannot be re-opened on the basis of observations in a different matter between different parties. The authority in support of this view has already been discussed above.
33. Similar principles are followed in England and have been elucidated in all the leading text books on the basis of three Judgments which have some similarity to the facts of this case. In The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002) these principles have been stated so lucidly in pages 518-519 of the treaties that they may be extracted:.Thus the Court's order is binding on the parties under the res judicata doctrine; the ratio decidendi is binding on other Courts in accordance with the principles outlined above under the doctrine of binding precedent. A startling illustration of the distinction was provided by the following series of cases. A testator, John Arkle Waring, left annuities to Mr. Howard and Mrs. Louie Burton-Butler 'free of income tax'. In 1942 the Court of Appeal in Re waring, Westminster Bank Ltd. v. Awdry ( 1942) Ch. 426 on an appeal in which Howard was a party, held that income tax had to be deducted. Louie was not a party as she was in an enemy occupied country. Leave to appeal to the House of Lords was refused. Four years later the House of Lords in Berkeley v. Berkeley (1946) A.C. 555 overruled the Awdry case. Subsequently, Jenkins J. held that the Awdry case was res judicata so far as Howard was concerned notwithstanding that its ratio had been overruled in Berkeley v. Berkeley and that Louie's annuity would be dealt with in accordance with the later case. See Re Waring, Westminster Bank v. Burton-Butler (1948) Ch. 221.
34. In Spencer Bower, Turner and Handley's Commentary on the Doctrine of res judicata (Butlerworths: London. Edinburgh. Dublin-1996), explaining the concept of res judicata, the Learned authors have stated at pages 8 and 9 of the book:
There is an essential difference between res judicata estoppel and the doctrine of judicial precedent. Under the former a final decision in fact or law by any Court having jurisdiction precludes either party (except on appeal) from again raising the same issue against the other in any Court. The doctrine of judicial precedent, on the other hand, is not concerned with issues between parties.
xxx xxx xxxThe difference is illustrated by the cases of Re Waring decided in 1942 and 1948. In the first Farwen held that Section 25 of the Finance Act 1941 was not applicable (1942) Ch. 309 to an annuity; but the Court of Appeal reversed this decision. (1942) Ch. 426. The effect was two-fold; it decided as res judicata between the parties that Section 25 applied, and it bound Courts up to the Court of Appeal in other cases. In Berkeley v. Bekeley (1946) AC 555, the House of Lords overruled Re Waring. In 1948 the trustees sought a decision as between themselves and the annuitant who had not been joined in the first proceedings. (1948) Ch. 221. The other annuitant remained bound by the earlier decision, but the result see Duke of Bedford v. Elliz (1901) AC 1 at 8, was otherwise governed by Berkeley v. Berkeley: Gisborne Sheepfarmers' Mercantile Co. Ltd. v. IRC (1962) NZLR 810 at 814.
35. The Learned Counsel for the Petitioner also relied on a decision of the Supreme Court in the case of Director of Settlement v. M.R. Apparao reported in : [2002]2SCR661 . In that case a particular Section of the Andhra Pradesh Estates (Abolition and Conversion into Ryotwary) 1948 Act was challenged before the Andhra Pradesh High Court and that Writ Petition was allowed by the High Court and it held the Section to be ultra vires vide its Judgment dated 22nd September, 1971. Thereafter relying on the same Judgment several petitions were filed before the Andhra Pradesh High Court and the High Court following the said Judgment allowed the Writ Petition. The State of Andhra Pradesh filed an appeal before the Hon'ble Supreme Court against the first Judgment which was rendered by the Andhra Pradesh High Court on 22.9.1971. The Supreme Court was pleased to set aside the said Judgment on 6th February, 1986 and held that the Section was constitutionally valid. After the said Judgment of the Hon'ble Supreme Court, the State of Andhra Pradesh issued a memorandum stating that the land holders will be covered by the Judgment of the Hon'ble Supreme Court. Thereupon, the land holders filed a Writ Petition before the Andhra Pradesh High Court challenging that memorandum and contending that since the State has not preferred any appeal against the Judgment delivered in their favour that Judgment has become final and the Judgment of the Supreme Court will not affect that. Learned Single Judge did not accept that contention. The Division Bench, however, on appeal reversed the Judgment of the Learned Single Judge against which State went to the Supreme Court.
36. The Supreme Court reversed the Judgment of the Division Bench and held that on the reversal of the original Judgment, which was the only basis of the subsequent Judgment, the right of the persons in whose favour the subsequent Judgment was rendered became ineffective. The Supreme Court held that the directions which were given in favour of the Respondents were given on the basis that the amendment was constitutionally invalid, but the moment the Supreme Court held the Act valid, those directions, have become futile.
37. It is clear from the aforesaid narration that the decision in M.R. Apparao was delivered on a different footing, namely, on the constitutional validity of a law. This is an exception to the principle of res judicata, inasmuch as once the Supreme Court declares a law to be valid, the same assumes the importance of a declaration of law by the Supreme Court under Article 141 of the Constitution. Therefore, no person can claim a right on a Judgment which declared the same law to be invalid. Such a claim will be contrary to the public policy.
38. In the instant case no such question arises. Here the sole question is whether on the death of the applicant for mining lease, the application abates or the legal representatives have the right to maintain the application on the principle of general law of lease. The Hon'ble Supreme Court in Saligram Khirwal's case (supra) held that it does not express any opinion on Rule 25A of the Mineral Concession Rules, 1960 after its amendment in 1991. In fact the Supreme Court made it dear in Saligram Khirwal's case that it was not concerned with the applicability of Rule 25A to the facts of that case. Rather from paragraph 13 of the decision it is clear that the decision in that case was confined to its facts and was rendered to meet the justice of the situation. Therefore, the ratio in Apparao's case, in my Judgment, is not applicable here and the doctrine of res judicata which operates between the parties in respect of the. Judgment of this High Court dated 2.7.2001 cannot be diluted.
39. The Learned Counsel also relied on another Judgment of the Supreme Court in the case of U.P. Pollution Control Board and Ors. v. Kanoria Industrial Ltd. and Anr. reported in : 2001(128)ELT3(SC) .
The decision of the Supreme Court in the case of Kanoria Industrial Ltd. has no application to the facts of the case. In Kanoria Industrial Ltd. the question was on the right to levy cess on sugar manufacturing units. From the facts it appears that U.P. Pollution Control Board allegedly levied cess on sugar manufacturing units under the provision of Water (Prevention and Control of Pollution) Cess Act, 1977 on the basis that sugar industry was covered by Entry 15 of Schedule I of the Cess Act. The levy was paid by Kanoria Industrial Ltd. under protest and the Writ Petition filed by the sugar industries challenging such levy was dismissed by the Division Bench of Allahabad High Court in Kisan Sahkari Chini Mills. Following the said decision Allahabad High Court dismissed several Writ Petitions filed by Kanoria Industrial Ltd. and others in view of the Judgment in Kisan Sahkari Chini Mills. No appeal was filed against the said Judgment or the Allahabad High Court by Kanoria Industry. But some other sugar manufacturing units went up on appeals to the Supreme Court and the Supreme Court reversed the decision of the Allahabad High Court in a batch of cases in Saraswati Sugar Mills, which is reported in : AIR1992SC224 . In Saraswati Sugar Mills case Suprente Court held that sugar manufacturing industry does not come within Entry 15 of Schedule-I of the Cess Act. Therefore, the Supreme Court gave a declaration of law, which would apply to the entire sugar manufacturing industry. On the basis of said declaration of law several sugar mills represented before the Pollution Control Board for refund of cess collected by the Board without any authority of law. But since refund was not granted, some of the sugar manufacturing units filed Writ Petitions in Allahabad High Court for refund of the amount collected in violation of the law declared by the Supreme Court in Saraswati Sugar Mill's case. The Allahabad High Court allowed the refund. The Board, aggrieved by that order of the Allahabad High Court, filed Special Leave Petition before the Hon'ble Supreme Court. Before the Supreme Court, Board contended that since Kanoria and others had not preferred any appeal from their previous Judgment of the Allahabad High Court dismissing their Writ Petitions challenging the levy, they cannot make any claim for refund on the basis of the Judgment in Saraswati's case since the said Judgment has become final. The Supreme Court rejected that contention, inter alia, on the ground that when under public law a particular provision imposing levy has been declared invalid by the Supreme Court, such a declaration applies to the entire industries. In fact in the instant case, the ratio of the Supreme Court's Judgment has been described as follows:
When a particular provision 6f levy of tax is held to be ultravires/invalid, then the levy could not be made effective and collection and realization made cannot be allowed to stand in respect of some sugar manufacturing units and some other manufacturing units merely because the latter have not appealed from the parent Judgment of the High Court which held-the levy to be good.
40. It is also obvious that such a levy Is unconstitutional under Article 265 of the Constitution as it is sought to be imposed without any authority of law inasmuch as the demand of impugned levy against sugar manufacturing industries as a whole has been declared legally invalid in Saraswati. In the case of such a declaration of law which has a public impact and a constitutional overtone, the doctrine of res judicata will not operate. But in the instant case the Judgment of the Hon'bie Supreme Court, in Saligram is not on any constitutional issue and the Supreme Court made it clear that it is not deciding on Rule 25A as the same has application to the facts and this was categorically observed more than once in the Judgment. So in view of the said Judgment the binding nature of the decision of the Division Bench of this Court dated 2.7.2001 in O.J.C. No. 11537 of 1999 cannot be touched since Special Leave Petition on the said decision by the Supreme Court has been dismissed. The reliance by the Learned Counsel on the Judgment of the Supreme Court in the case of Lily Thomas and Ors. v. Union of India and Ors. reported in : 2000CriLJ2433 is also not applicable for the same reason. In that Judgment ft has been held that when the Court interprets a statute such interpretation relates back to the date of law itself and it cannot be prospective from the date of Judgment. But in the case of Saligram, Supreme Court did not interpret Rule 25A. On the other hand Supreme Court made it very clear that Rule 25A has no application to the facts of the case and the decision which was rendered in Saligram was de hors the said Rule.
41. Learned Counsel for the Petitioner also relied on the Judgment of the Supreme Court in the case of Kunhayammed v. State of Kerala reported in : [2000]245ITR360(SC) . In that Judgment the Supreme Court held that dismissal of Special Leave Petition by a non-speaking order does not attract the doctrine of merger. It has never been contended by the Learned Counsel for the legal representatives that it does. But one thing is clear that as a result of dismissal of Special Lease Petition by the Supreme Court the Judgment dated 2.7.2001 of the Division Bench of this Court in O.J.C. No. 11537 of 1999 has attained finality between the parties and the same cannot be re-opened by a decision of the Supreme Court in a different Judgment between different parties. Here the principles of res judicata will operate.
42. There are very few exceptions to the application of the principles or res judicata. If a decision is rendered by a Court which has no jurisdiction (See Mathura Prasad (supra)) in that case it is not a competent Court, res judicata will not operate. Similarly if the decision of the Court is on an abstract question of law, unrelated to the facts in issue (See Supreme Court Welfare Association (supra)) or if the decision of the Court is on constitutional validity of a law which has been subsequently reversed by the Supreme Court (See M. Appa Rao (supra)), or a decision on the validity of imposition of tax which has been reversed by the Supreme Court (see Kanoria Industrial Ltd.), those decisions will not operate as res judicata.
43. Here none of the exceptions will apply.
So for the reasons discussed above, the preliminary objection of the Petitioner, in my Judgment, rests on a faulty premise and is, therefore, rejected.
The Writ Petition should now be heard on merits at an early date.
No order as to costs.
N. Prusty, J.
44. I agree Preliminary objection rejected; Writ Petition to be heard on merits.