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2008 DIGILAW 846 (ORI)

GEETARANI MOHANTY v. STATE OF ORISSA

2008-09-17

B.P.DAS, R.N.BISWAL

body2008
JUDGMENT : R.N. Biswal, J. - The Petitioner has filed this writ petition with a prayer to direct the Opp. parties 1 to 4 to ensure that she herself or her agent or her Power of Attorney Holder is able to exercise her lease-hold right strictly in conformity with the Govt. proceeding dated 17.10.1992 (Annexure-3) and transfer/assignment deed dated 13.1.1993 (Annexure-4) and participate in the operation of the mines as described in the schedule of the writ application and to direct Opp. party No. 4 to provide adequate police protection for the same. 2. As per the writ petition, pursuant to her application to the State Govt. for grant of mining lease of iron ore over an area of Ac.196.30 dec. in village Raikela; in the district of Sundargarh, the State Govt. vide its proceeding dated 14.11.1990 decided to grant mining lease of iron ore in favour of the Petitioner for a period of 20 years. Pursuant to the said proceeding dated 14.11.1990 the State Govt. by an indenture of lease dated 2.7.1991 in respect of an area of Acs. 167 as described in the schedule of the writ petition, granted mining lease in favour of the Petitioner on terms and conditions as set forth therein vide Annexure-1 series. On 10.1.1991, the Petitioner registered General in favour a Power of Attorney of Opp.party No. 5 for carrying on survey, demarcation and execution of mining lease and all other acts incidental thereto. The Petitioner and Opp.party No. 5 executed.a partnership 'deed on 3.8.1991 for doing business of mining and various other allied business in the name and style "M/s. Geetarani Mohanty", a copy of which is Annbexure-2. There is a clause in the partnership deed laying down that all differences arising between the partners or respective representatives or any of them shall be referred to Arbitration of one person to be selected mutually by all the partners. At the instance and on the persuasion of Opp. party No. 5, (Managing partner) the Petitioner made an application on 3.2.1992 to the Govt. of Orissa for transfer of the aforesaid mining lease of iron ore in favour of the partnership firm M/s. Geetarani Mohanty in which she had 55% while Opp. party No. 5 had 45% of share. The Govt. party No. 5, (Managing partner) the Petitioner made an application on 3.2.1992 to the Govt. of Orissa for transfer of the aforesaid mining lease of iron ore in favour of the partnership firm M/s. Geetarani Mohanty in which she had 55% while Opp. party No. 5 had 45% of share. The Govt. of Orissa vide its proceeding dated 17.10.1992 was pleased to accord permission for transfer of the said mining lease in favour of the partnership firm for the unexpired period of the mining lease under Annexure-3. On 13.1.1993 a tripartite deed in Form No. 'Of' was executed between the Petitioner, M/s. Geetarani Mohanty and the Govt. of Orissa in respect of the said mines after being duly approved by the Govt. of India, a copy of which is Annexure-4. 3. It is the further case of Petitioner that Opp. party No. 5 taking advantage of the extremely cordial relationship, he was enjoying with the Petitioner and i because of her absolute faith and trust on him fraudulently managed to made her execute a deed of' retirement on 31.3.1993 as well as a letter of resignation of the even date from the partnership firm, relinquishing her share in his favour under Annexures 5 and 6' respectively. The Petitioner remained blissfully ignorant of the foul play practised upon her. Opp.party No. 5 cunningly doled out few thousand rupees intermittently to the Petitioner during the period 1993-2006 in the name of profit towards her share in the deed of partnership and thereby impressed upon her that she continued to be the partner of? the firm constituted on 3.8.1991. No reason has been assigned in either of those documents (Annexures-5 and 6) with regard to retirement and resignation of the Petitioner. Similarly no consideration was reserved or paid to the Petitioner for such transactions. So it is the abundantly clear that the deed dated 31.3.1993 and the letter of resignation of the Petitioner.have been obtained by Opp.party No. 5 by practising fraud. Having procured the deed dated 31.3.1993 and the letter of resignation by fraudulent means, Opp.party No. 5 illegally and unauthorizedly formed another partnership firm on 1.4.1993 comprising himself, his father Dushasan Sahoo (Opp.party No. 5, and his wife Smt. Suprasanna Sahoo (Opp.party No. 7) showing reconstitution of the partnership firm M/s. Geetarani Mohanty, though in fact, the said deed was avowedly a new partnership firm operative from 1.4.1993. The newly constituted partnership firm was never riecognized by the State Govt. When the children of the Petitioner came off age, in the year 2006 they could detect the fraud played by Opp.party No. 5 on the Petitioner. Having come to know all these, on 16.1.2006 the Petitioner cancelled the General Power of Attorney granted in favour of opp. party No. 5 earlier. 4. Opp.party No. 5 filed a Civil Suit in the month of February 2006 before the Civil Judge (Junior Division) Bhubaneswar vide C.S. No. 49 of 2006 seeking,a decree of permanent injunction against the Petitioner refraining her from interfering with the properties of the firm in any manner whatsoever, including the management and administration of the same. He also filed a petition U/Of 39 Rule (l) and. (2) of the CPC registered as l.A. No. 9", of 2006 with a prayer to restrain the Petitioner from interfering with the scheduled mining area including administration and management of the firm till disposal of the suit. 5. On 7.2.2007 the Petitioner wrote a letter under annexure-8 to the Deputy Director of Mines, Koira for stoppage of mining operation carried on by Opp.party Nos. 5 to 7. She also wrote a letter on 14.4.2007 to the Director of Mines, Orissa, Bhubaneswar under Annexure-9 for stoppage of mining operation in the scheduled mine area by private opp. parties. Again on 4.7.2007 she wrote a letter to the Principal Secretary to Govt. of Orissa, Steel and Mines Department with the selfsame prayer vide Annexure-l0. But there was no response from any quarter. So, she was compelled to file the writ petition as she had no other speedy and efficacious remedy, with the prayer as noted earlier. 6. Opp.party Nos. 1 of 3 in their joint counter affidavit admitted the fact of constitution of the partnership firm on 3.8.1991 between the Petitioner and Opp.party No. 5 in the name and style "M/ s. Geetarani Mohanty" the Petitioner having" 55% while Opp. party 45% of share in the mining operation. They also admitted execution of the tripartite deed dated 13.1.1993. According to these opp.parties after execution of the tripartite agreement mining operation was undertaken as per the terms and conditions of the said deed. party 45% of share in the mining operation. They also admitted execution of the tripartite deed dated 13.1.1993. According to these opp.parties after execution of the tripartite agreement mining operation was undertaken as per the terms and conditions of the said deed. The fact of reconstitution of the partnership firm has not yet been accepted and there is no' transfer of the lease hold area to the reconstituted firm by the State Govt. as required under law. If the Petitioner resigned or retired from the partnership firm having 55% of share, she had to obtain permission from the Govt. for determination of the lease as envisaged under Sub-Rule 3 of Rule 37 of The Mineral Concession Rules 1960 (hereinafter referred as "M.C. Rules). In absence of such communication the Govt.has to act in accordance with the proceeding dated 17.10.1992 under Annexure-3 and the deed executed in Form No. "Of" dated 13.1.1993, Annexure-4. These Opp. parties admitted that the Petitioner by letter dated 7.2.2007 requested the Deputy Director of Mines, Koira (Opp.party No. 3) for stoppage of the mining operation carried on by Opp.party No. 5, but opp. party No. 3 did not take any step on such request since the mine was being operated not by Geetarani Mohanty but by the firm M/s. Geetarani Mohanty. So Opp. parties 1 to 3 pressed to dismiss the writ petition. Opp. party No. 4 did not prefer to file any counter affidavit. 7. Opp.party No. 5 in a separate counter affidavit contended that the writ petition being frivolous, vexatious and devoid of merit and having been filed with mala fide and dishonest intention, should be dismissed at the threshold. According to him, on 31.3.1993 the Petitioner retired and resigned from the partnership firm. In the resignation letter she stated that Opp.party No. 5 was thereby at liberty to invite and admit any partner at his will for smooth management of the mining business as per the terms and conditions of the partnership deed dated 3rd August, 1991. The' resignation letter also contained that the books of accounts up to 31.3.1993 having been finalized, the Petitioner accepted the same. The deed of retirement dated 31.3.1993 executed by the Petitioner was witnessed by her husband, who was a responsible officer of the Govt. then. The partnership firm was reconstituted on 1.4.1993 with opp.parties Nos. The' resignation letter also contained that the books of accounts up to 31.3.1993 having been finalized, the Petitioner accepted the same. The deed of retirement dated 31.3.1993 executed by the Petitioner was witnessed by her husband, who was a responsible officer of the Govt. then. The partnership firm was reconstituted on 1.4.1993 with opp.parties Nos. 6 and 7 inducted as new partners of the firm M/ s Geetarani Mohanty. The Petitioner ceased to be a partner in the reconstituted partnership firm and Opp.partyNos. 6 and 7 have no association whatsoever with the Petitioner. The reconstituted deed of partnership was duly witnessed by the Petitioner herself. On 21.5.1993, opp. party No. 5, as managing partner intimated the Addl. Secretary to the 'Govt. in the Department of Steel and Mines, Bhubaneswar about retirement of the Petitioner and induction of Opp.party Nos. 6 and 7 as new partners of the partnership firm in compliance with Rule 62 of the M.C. Rules. In conformit wich Section 72 of the Indian Partnership Act, the resignation of the Petitioner and reconstitution of the Partnership Firm was published in the Newspaper on 18.7.1993 and also notified in the Official Gazette on 24.2.2006 under Annexure-4 series to the counter affidavit of Opp. party No. 5 According to opp. party No. 5 reconstitution of the partnership firm did not create a new partnership firm but the same partnership firm continued to exist. 8. Furthermore, it is the case of this opp. party that as the Petitioner herself and through her agent illegally attempted to interfere with the operation of the mine in question, on 7.2.2006, he filed C.S. No. 49 of 2006 in the court of Civil Judge (Jr. Division), Bhubaneswar against the Petitioner herein for declaration of permanent injunction, restraining her from interfering with the business operation, administration and activities of the partnership firm. He also filed an application under order 39 Rule 1 and 2 of the CPC vide LA. No. 55 of 2006 seeking to restrain the Petitioner from interfering with the running of the mine till disposal of the civil suit. Learned Civil Judge (Jr. Division) vide order dated 21.2.2006 was pleased to pass status quo order with regard to the subject matter of the suit vide Annexure-5 series to the counter affidavit of opp. party No. 5. 9. Learned Civil Judge (Jr. Division) vide order dated 21.2.2006 was pleased to pass status quo order with regard to the subject matter of the suit vide Annexure-5 series to the counter affidavit of opp. party No. 5. 9. On 7.1.2008, after approximately 15 years of her resignation from the partnership firm, claiming under an alleged arbitration clause in the partnership deed dated 3.8.1991, the Petitioner filed a petition u/s 9 of the Arbitration and Conciliation Act, 1996 vide Arbitration petition No. 15 of 2008 in the court of learned District Judge, Khurda, Bhubaneswar inter alia praying therein for grant of injunction against Opp. party Nos. 5 to 7 herein and.their agents, servants and all others from carrying on mining operation in the mine in question. Since there had been a full and final settlement of accounts, the Partnership Firm formed on 3.8.1991 had been reconstituted with effect from 1.4.1993. Therefore, the arbitration agreement stood superseded. Accordingly, there was no question of invoking the arbitration agreement of the partnership deed dated 3.8.1991. However, on 9.1.2008, the District. Judge was pleased to pass restraint orders against Opp. party No. 6 and 7 herein. These OPP. Parties appealed against the said order before this Court and this Court vide order dated 22.1.2008 directed the District Judge to expedite hearing of the application filed u/s 9 of the Arbitration and Conciliation Act, 1996 and the said petition was allowed by learned District Judge vide order dated 17.3.2008. Being aggrieved by the said order, present opp. party Nos. 6 and 7 preferred an appeal bearing No. ARBA 7 of 2008 and opp. party No. 5 referred a separate appeal bearing No. ARBA 9 of 2008 before this Court and on hearing both the appeals together order was reserved (In the meantime both the appeals were allowed on 1.7.2008). 10. Again the Petitioner filed a petition u/s 11 of the Arbitration and Conciliation Act, 1996 in Arbitration Petition No. 23 of 2008 for appointment of an arbitrator. Opp. party Nos. 6 and 7 filed a suit against Manoj Agarwal (petitioner's agent) and Ors. in C.S. No. 22 of 2008 for declaration, cancellation, permanent injunction and damages which is pending adjudication before the Civil Judge, Junior Division, Champua. According to Opp. Opp. party Nos. 6 and 7 filed a suit against Manoj Agarwal (petitioner's agent) and Ors. in C.S. No. 22 of 2008 for declaration, cancellation, permanent injunction and damages which is pending adjudication before the Civil Judge, Junior Division, Champua. According to Opp. party No. 5 the Petitioner who retired from the partnership since 1.4.1993 as per records, does not have the locus standi to question the functioning of the re-constituted firm. Under such premises, he prayed to dismiss the writ petition. Opp. party Nos. 6 and 7 almost adopted the pleading of opp. party No. 5. 11. Learned Counsel for the Petitioner submitted that as defined u/s 4 of the Indian Partnership, Act, 1932 (hereinafter called Partnership Act) firm is not a legal entity separate and distinct from its partners. It is, only a compendious description of individuals, who compose the firm. The assets of the partnership belong to and are owned by the partners of the firm. In support of his submission, learned Counsel for the Petitioner relied on, the decisions N.Khadervali Saheb (dead) LRS and Anr. v. N. Gudu Sahib (dead).and Ors. (2003) 3 see 229, Munshi Ram and Ors. v. Municipal Committee Chheharta 1979 (3 ) see 83, Hardev Singh and Another Vs. Karam Dad Khan, and Her Highness Maharani Mandalsa Devi and Others Vs. M. Ramnarain (P) Ltd. and Others, . 12. In the case of N. Khadervali Saheb (supra) a, partnership firm was constituted comprising four persons belonging to one family. Disputes and differences arose between the partners which were ultimately referred to arbitration. The arbitrator made an award, which was challenged inter alia on the ground that it required registration u/s 17 of the Registration Act. In that context, the apex Court held that a partnership firm is not an independent legal entity and that the partners are the real owners of the assets of the partnership firm. The firm name is only a compendious name given to the partnership for the sake of convenience. The assets of the partnership belong to and are owned by the partners of the firm. Accordingly, it was held that the award did not amount to creation of or transfer of any fresh rights in movable or immovable property, as such it would not come within the ambit of Section 17 of the Registration Act. 13. In the case of Munshiram and Ors. Accordingly, it was held that the award did not amount to creation of or transfer of any fresh rights in movable or immovable property, as such it would not come within the ambit of Section 17 of the Registration Act. 13. In the case of Munshiram and Ors. (supra), Chheharta Municpal Corporation Committee levied professional Tax u/s 61 (1 ) (b) of the punjab Municipal Act 1911. The Appellants were partners of a firm. Each of the partners of the said firm was assessed professional Tax of Rs. 200/- by the Municipal corporation Committee which was challenged and ultimately that came up to the Apex Court. The Apex Court held that the firm or partnership as defined u/s 4 of the partnership, Act is not a legal entity separate and distinct from the partners and as such each of the partner was liable to pay professional tax. 14. In the case of. Hardev Singh (supra), the Appellant and the Respondent were partners of a firm carrying on business of selling cloth. One of the partners alleged that a sum of Rs. 10,000/- belonging to the partnership business was given to the Respondents for purchase of cloth for the firm but they mis-appropriated the same. He made a complaint u/s 409 of I.P.C. against the Respondents on the accusation of commission of offence. The question before the High Court of Jammu and Kashmir was, whether the Respondent would be liable u/s 409 of I.P. C.? It was held that as defined u/s 4 of the Partnership Act, firm or partnership is not a legal entity, separate and distinct from the partners, and is only a compendious description of individuals, who composed the firm. In the decision Her Highness Maharani Mandala (supra) the apex court held that a suit filed by or in the name of a firm is in fact a suit by or in the name of all its partners. The decree passed in the suit, though in form against the firm, but in effect is a decree against all the partners. In view of the ratio laid down in the aforesaid decisions, it is held that firm is not a legal entity separate and distinct from its partners. It is only a compendious description of,individuals, who compose the firm. 15. In view of the ratio laid down in the aforesaid decisions, it is held that firm is not a legal entity separate and distinct from its partners. It is only a compendious description of,individuals, who compose the firm. 15. Learned Counsel for the Petitioner further submitted that as required under Rule 37 ( 1) of the M.C. Rules without prior consent of State Government and of previous approval of the Central Govt. a lessee Can not assign, sublet or mortgage or in any other manner transfer the mining lease or any right, title or interest therein. In the case at hand even if it is held that Mrs. Geetarani Mohanty resigned from the partnership firm, her share of 55% could not have been transferred to the private opp.parties 5,6 and 7, without prior consent of the State Govt and approval of the Central Government. So, the transfer s void from its nativity. In support of his submission, learned Counsel for Petitioner relied on the decisions' Kuju Collieries Ltd. Vs. Jharkhand Mines Ltd. and Others Waman Shriniwas Kini Vs. Ratilal Bhagwandas and Co., and Mannalal Khetan and Others Vs. Kedar Nath Khetan and Others, . 16. As against this, learned Counsel for the Opp.party No. 5 submitted that the bar stipulated u/s -37 (1) of M.C. Rules is not absolute. There is no absolute restriction for a lessee to assign, sublet mortgage or transfer the mining lease or any right, title and interest therein, as he can do so with prior consent of the State Government. Again, Sub-rule (3 ) of Rule 37' of the M.C. Rules leaves it to the discretion of the Govt. to rectify the mistake. So it is clear that transfer of a mining lease in contravention of Rule 37 (1) of the M.C. Rules is not void ab initio, but it is voidable. As long as the Govt. by exercising its power under Sub-Rule 3 of Rule 37 of the M.C Rules does not determine the lease, it is valid and binding. Because of the rival contentions of the counsel of the parties, it would be profitable to quote Rule 37(1) of the M.C. Rules 1960 which reads as follows: 37. Transfer of lease-(l) The lessee shall not, without the previous consent in writing of the State Government and in the case of mining lease in respect of any mineral specified in Part A and. Transfer of lease-(l) The lessee shall not, without the previous consent in writing of the State Government and in the case of mining lease in respect of any mineral specified in Part A and. Part B of the First Schedule to the Act, without the previous approval of the Central Government (a) assign, sublet, mortgage, or in any other manner, transfer the mining lease, or any right, title or interest therein, or (b) enter into or make any bona fide arrangement, contract or understanding whereby the lessee will or may be directly or indirectly financed to a substantial extent by, or under which the lessee's operations or undertakings will or may be substantially controlled by, any person or body of persons other than the lessee: Provided further that where the mortgagee is an institution or a Bank or a Corporation specified in Schedule V, it shall not be necessary for the lessee to obtain any such consent of the State Government.". 17. The words and Alphabets 'Part A and Part B' as found in Sub-rule (1 ) of Rule 37 of the M.C. Rules quoted above were inserted to it by way of an amendment in the month of January, 2000. 'Act' as found in the above quoted provision has been defined under Rule 2 of the M.C. Rules as The Mines and Minerals (Development and Regulation) Act, 1957. Prior to the aforesaid amendment, approval of the Central Government was required for assignment, subletting, mortgaging or in any other manner transfering, the mining lease or any right, title or interest therein, in respect of the minerals specified in Schedule 'A',of The Mines and Minerals (Development and Regulation) Act 1957, iron ore is a specified mineral as per the said schedule. Admittedly, in the case at hand, previous consent of the State Government with prior approval of the. Central Government was not obtained while reconstituting the firm M/s. Geetarani Mohanty by inducting opp.parties 6 and 7. As already held earlier, firm is a compendious names of the partners. Now, we would examine, if reconstitution of the firm without prior consent of the State Government and approval of the Central Government was bad in law and void, in the light of the decisions cited by learned Counsel for the Petitioner. 18. The decision in Kuju Collieries Limited (supra) is not relevant to this case. Now, we would examine, if reconstitution of the firm without prior consent of the State Government and approval of the Central Government was bad in law and void, in the light of the decisions cited by learned Counsel for the Petitioner. 18. The decision in Kuju Collieries Limited (supra) is not relevant to this case. In the decision Waman Shriniwas Kini (supra), the Appellant was a tenant for about 20 years In the premises known as Fida Ali Villa in. Kalyan. The said building was purchased by Respondent. He gave notice to the Appellant to vacate the premises as he wanted to construct a new building on the site of the old one. The Appellant vacated the premises and the Respondent let him a portion of his new building. The Appellant had four sub-tenants in Fida Ali Villa of whom, three also shifted to the new premises. The Respondent filed a suit against Appellant for ejectment on the ground that he sublet part of a premises let out to him and thereby violated Section 31 (1) (e) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) which stipulates that: Notwithstanding anything contained in this Act, (but subject to the provisions of Section 15) a landlord shall be entitled to recover possession of any premises if the Court is satisfied... e) that the tenant has, since the coming into operation of this Act," sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein." The Appellant pleaded that under the agreement" he was entitled to sublet the premises. Such an agreement was held to be void by the apex court because of the provision: contained under Rule 31 (i) (e) of the Act and Section 23 of the Contract Act. It was further held that enforcement of the agreement would produce the very result which the law sought to guard against and to prevent. 19. The apex Court in the case of Manilal Khetan and Ors. (supra) held: It is well established that a contract which involves in its fulfillment the doing of an act prohibited by statute is void. The legal maxim A. Pactis privatorum publico juri non derogatur means that private agreements cannot alter the general law. 19. The apex Court in the case of Manilal Khetan and Ors. (supra) held: It is well established that a contract which involves in its fulfillment the doing of an act prohibited by statute is void. The legal maxim A. Pactis privatorum publico juri non derogatur means that private agreements cannot alter the general law. Where a contract, express or implied is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. In view of the ratio laid as down in the aforesaid decisions, we are of the view that assignment, subletting, mortgaging or in any other manner transferring the mining lease, or any right, title or interest therein in violation of the provision contained under Rule 37 (1 ) of the M.C. Rules is void from its nativity) Now, the question is whether reconstitution of the firm M/S. Geetarani Mohanty, by inducting opp. party Nos. 6 and 7 would be void because of non-compliance of Rule 37 (1) of the M.C. Rules. 20. Learned Counsel for opp. party No. 5 submitted that reconstitution of partnership firm did not amount to assignment, subletting or transfer of the mining lease or i any right, title and interest therein in any manner whatsoever. In the reconstituted partnership firm and the firm constituted in 1991, Opp.party No. 5 is a common partner. Reconstitution of a partnership firm with a continuing partner does not amount to assignment, subletting or transfer of any right, title and interest of the lease. In support of his submission, he relied on the decision in Muralidhar v. Chunilaland Ors. (1970) All Ind RCJ 922 (SC), Jer and Co. Vs. Commissioner of Income Tax, U.P. Kommineni Krishna Rao Vs. Kommineni Babjee Rao and another, and Chennuru Ramarao Vs. Gowri Sankar Talkies, Tekkali and Others, . 21. In the decision Muralidhar (supra) the landlord filed a suit for ejectment against his tenant under the East Punjab Urban Rent Restriction Act, 1948 on several grounds, one of being that the tenant sublet the premises without written consent of the landlord. The premises in dispute was a shop which was originally let out to a firm after the name M/s. "Chuni Lal Gherulal. The firm consisted of three partners, namely Chunilal, Gherulal and Meghraj. The premises in dispute was a shop which was originally let out to a firm after the name M/s. "Chuni Lal Gherulal. The firm consisted of three partners, namely Chunilal, Gherulal and Meghraj. The business of the said partnership was closed sometime before November 1955 and thereafter the shop was used by a new firm after the name M/s. Meghraj Bansidhar of which the partners were Meghraj (a partner of the old firm) Chunilal, Gherulal and Bansidhar. The question before the apex Court was whether the shop was sublet to the new firm? It was held by the Apex Court that firm is only a compendious way of, describing the partners the firm. The occupation by a firm is only occupation by its partners. Where the old and the new firm have a common partner, he (the common partner) would be considered to be in possession of the premises of the firm, although in his individual capacity. As such, it cannot be said that the shop was sublet to the new firm. 22. In the case of M/s. JER & Co (supra), one Dady obtained a licence in his name in the year 1945 from the Excise authorities under Rule 574 of the U.P. Excise Rules for wholesale vending of foreign liquor which was renewed year to year. By an agreement dated July 21,1948, Dady entered into a partnership business with his brother Minoo to carry on the business of wholesale foreign liquor in the name and style of M/s. Jer and Company in Agra. There was no prohibition against entering into the partnership for carrying on the business in foreign liquor by holder of the licence. The aforesaid partnership for was registered u/s 26-A of the Indian Income Tax Act, 1922 till the assessment year 1957-58 and an application for renewal was filed by the' firm in the assessment year 1958-59 and 1959-60. The Income Tax Officer ordered to grant registration, but the order was set aside by the Commissioner of Income Tax, on the ground that there was no transfer of business.Appeal preferred against it was allowed by the Tribunal holding that there was no transfer of the business or subletting. The Income Tax Officer ordered to grant registration, but the order was set aside by the Commissioner of Income Tax, on the ground that there was no transfer of business.Appeal preferred against it was allowed by the Tribunal holding that there was no transfer of the business or subletting. At the instance of the Commissioner the following question was referred by the Tribunal to the High Court of Allahabad Whether on the facts and circumstances of the case the firm was entitled to registration u/s 26-A of the Income Tax Act? The High Court answered the question in negative. Then the firm appealed to the apex Court with Special leave. The apex Court held as follows: The Commissioner and the High Court proceeded on the footing that the licence was governed by Rule" 322, which prohibited the holder of the licence from entering into a partnership with another person. But the licence, it is clear from the record, was in Form FL II issued under the U.P. Excise Manual. The licence does not prohibit the holder from entering into partnership by the holder of the licence: it merely provides that the licence shall not be sub-let or transferred. Since there is no prohibition against any entry by the holder of the licence into partnership the question whether the partnership was illegal does not arise. The firm was entitled on that account to registration. It is somewhat unfortunate that" the attention of the Commissioner and the High Court was not invited to the form in which the licence was issued by the Excise authorities. They proceeded to decide the case on the footing that Rule 322 of the Excise Manual applied. But that Rule has no application here. 23. In the case of Kommineni Krishna Rao (supra) a Division Bench of Andhra Pradesh High Court held that, where licence to exhibit cinema films was issued to an individual and a partnership was formed by the licence holder with others for running it, it would not amount to transfer. 24. But that Rule has no application here. 23. In the case of Kommineni Krishna Rao (supra) a Division Bench of Andhra Pradesh High Court held that, where licence to exhibit cinema films was issued to an individual and a partnership was formed by the licence holder with others for running it, it would not amount to transfer. 24. In the case of Chennuru Rama Rao (supra) referring several decisions of the Apex Court and different High Courts, a Division Bench of Andhra Pradesh High Court held: In the light of the above decisions, it is clear that as a licence does not prohibit the holder of licence from entering into a partnership with any other and as there is no subletting or transfer of the licence by the licensee to any other partners, the formation of the partnership with the licence holder does not amount to a transfer of the licence and the partnership cannot, therefore, be said to be illegal or opposed to 8.23 of the Contract Act. 25. In the case at hand after retirement of Geetarani Mohanty from the Partnership Firm constituted in the year, 1991 and her resignation therefrom' the Partnership Firm was reconstituted by inducting opp. party Nos. 6 and 7. No doubt, the Petitioner has challenged the deed of retirement, letter of resignation and the deed of reconstitution of the firm as fraudulent, but unless and until the same are declared to be void by competent Civil Court, this Writ Court under Article 226 of the Constitution, cannot hold that the same were created by practising fraud. Moreover, the Petitioner did not seek adjudication of the disputed facts which are the subject matters of various litigations. In view of the aforesaid decisions since the Firm was reconstituted in the year, 1993 by inducting opp. party Nos. 6 and 7, it cannot be said that the original firm constituted in the year, 1991 or the Petitioner as lessee, assigned, sublet, mortgaged or in any other manner transferred the mining lease or any right, title, interest therein to the reconstituted Firm. So, the submission of learned Counsel for the Petitioner that reconstitution of the Firm without prior consent of -the State Government and approval of the Central Government is bad in law and void, cannot be accepted. 26.,Learned Counsel for the opp. So, the submission of learned Counsel for the Petitioner that reconstitution of the Firm without prior consent of -the State Government and approval of the Central Government is bad in law and void, cannot be accepted. 26.,Learned Counsel for the opp. party No. 5 further submitted that the writ Petitioner had no locus standi, "to contend that reconstitution of the firm is void because of non-compliance of Rule 37(1) of" the M.C." Rules. This Court should not invalidate the reconstitution of the Firm, even assuming such reconstitution resulted in transfer of lease hold interest, unless it is satisfied that such remedy is sought by right person in right proceeding and circumstances. In support of his submission he relied upon the decision in the case of State of Rajasthan and Others Vs. D.R. Laxmi and Others wherein the Apex Court held as follows: The question whether violation of the mandatory provisions renders the result of the action as void or voidable has been succinctly considered in administrative law by H.W.R. Wade (7th edition) at P.342-43) thus The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by right person in right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the Plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his right, or for some other legal reason. In any such case the 'void' order remains effective and is in reality, valid. It follows that an order may be void for one purpose and valid for another. A common case where an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid, but by cutting off legal remedies it produces that result. Quoting wade as above the apex Court further held: The order or action, if ultra vires the power becomes void and it' does not confer any right. But' the action need not necessarily be set at naught in all events. Quoting wade as above the apex Court further held: The order or action, if ultra vires the power becomes void and it' does not confer any right. But' the action need not necessarily be set at naught in all events. Though the order may be void if the party does not approach the Court within reasonable time, which is always a question of fact, and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstance. 27. In the present case, the writ Petitioner claims the relief basing upon the Partnership deed dated 3rd August, 1991. However, since the year, 1993 when the deed of retirement, letter of resignation and deed of reconstitution of the Firm came into existence, the reconstituted Partnership Firm has been operating the mine. The Petitioner cannot claim the relief sought for without getting those deeds declared as void, illegal and inoperative. Admittedly, opp. party No. 5 filed C.S. No. 49 of 2006 in the court of learned Civil Judge (Jr. Division), Bhubaneswer praying inter alia for a decree to declare the Petitioner as not an existing partner of the reconstituted Partnership Firm and further to restrain her permanently from interfering with the Partnership business. The Petitioner has also filed a suit in the Civil Court to establish her right. Since there are disputed question of facts with regard to retirement and resignation of the Petitioner from the Partnership Firm constituted In the year 1991 and the deed of reconstitution, this Court is at loath to grant the relief sought for. The contention of learned Counsel for the Petitioner that without getting the deed of retirement, letter of resignation or the deed of reconstitution of the Partnership Firm declared as void by competent civil court, the relief sought for can be granted in favour of the Petitioner cannot be accepted. The contention of learned Counsel for the Petitioner that without getting the deed of retirement, letter of resignation or the deed of reconstitution of the Partnership Firm declared as void by competent civil court, the relief sought for can be granted in favour of the Petitioner cannot be accepted. When the reconstituted Firm has been operating in the scheduled mine since 1993 and this writ petition has been filed in the year, 2008 only, we cannot ignore the deed of retirement and, letter of resignation and the deed of reconstitution of the firm and, grant the relief sought for. 28. Learned Counsel for the opp.parties 6 and 7 submitted that the Partnership firm constituted in the year 1991 was reconstituted in the year 1993. Private opp. parties have been operating the mines since l993. After lapse of 15 years the Petitioner came up with the present writ petition. There is no satisfactory explanation for such inordinate delay. Furthermore, affidavit explaining the delay has not been filed by Geetarani Mohanty, who is the best person to explain the delay, but it has been filed by one Manoj Agarwal. So, even if the reconstituted firm is held to be invalid, still then, no relief cad be granted to the Petitioner, the writ petition being barred by law of limitation. As stated earlier, the lease was granted in favour of Petitioner in the year 1991 for a period of 20 years. So the lease is to expire in 2011. The Petitioner has not prayed for quashing the deed of retirement, letter of resignation or the deed of reconstitution of the firm. As per her, she has the right to operate the mine till 2011, for which writ cannot be barred by limitation. So, we are not in one with the submission of learned Counsel for opp. party Nos. 6 and 7 with regard to maintainability of the writ application on the ground of long delay in filing the same. 29. At last learned Counsel for the Petitioner submitted that when,opp. parties 1 to 3 being the owner of the minerals in their joint counter affidavit refused to acknowledge any other document/transfer or proceeding subsequent to execution of the proceeding dated 17.10.92 (Annexure-3 to the writ petition) opp. party Nos. 6 and 7 cannot claim any right over the lease hold property basing on the reconstituted partnership firm. parties 1 to 3 being the owner of the minerals in their joint counter affidavit refused to acknowledge any other document/transfer or proceeding subsequent to execution of the proceeding dated 17.10.92 (Annexure-3 to the writ petition) opp. party Nos. 6 and 7 cannot claim any right over the lease hold property basing on the reconstituted partnership firm. As we have already held earlier, we cannot ignore the deed of retirement executed by the Petitioner herself In presence of her husband, who was a Government servant (Annexure-5 to the writ petition) and the deed of reconstitution of the firm, wherein the Petitioner is a signatory. Furthermore, even though opp. parties 1 to 3 in their counter affidavit feigned their ignorance about any proceeding in respect of the mining lease in question, save and except, the proceeding dated 17.10.92, we cannot ignore the fact that the reconstituted partnership firm has been paying royalty to the Government since 1993 under Annexure-E/5 to the Addl. counter filed by opp.party No. 5. We also cannot close: our eyes to the fact that the reconstituted partnership firm has intimated to the State Govt. about the change; brought in the original partnership firm, as required under Rule 6 2 of the M.C. Rules and the gazette publication with regard to retirement of the Petitioner from the firm, M/S. Geetarani Mohanty constituted in the year 1991, as required u/s 72 of the Partnership Act. 30. Therefore, in view of the aforesaid discussions, the writ petition, being devoid of merit, stands dismissed. B.P. Das, J. 31. I agree. Final Result : Dismissed