Full Judgment Text
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PETITIONER:
C. BUCHIVENKATA RAO
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT08/03/1972
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
GROVER, A.N.
CITATION:
1972 AIR 1324 1972 SCR (3) 665
1972 SCC (1) 734
ACT:
Mineral Concession Rules, 1949, rr. 27 and 32--Application
not accompanied by map and containing defects re : area--If
should be rejected.
Practice--If legal representative can continue application
for mining lease--Equities.
HEADNOTE:
The application of one B for a mining lease was rejected on
the ground that another applicant V had a prior claim. B’s
writ application was dismissed by the High Court and while
his appeal in this Court was pending he died and his sons
were allowed to be impleaded as legal representatives
subject to any -objection that may be taken to their right
to continue the appeal.
On the question whether Vs application was defective because
it was not in accordance with r. 27 of the Mineral
Concession Rules and because of want of a map and ’some
details regarding area, and therefore, whether B’s. appli
cation should have been granted,
HELD : (1) The details mentioned in r. 27 are intended for
the correct identification of the individual to whom the
lease is to be granted, the minerals which are to be mined
the area in respect of which the lease was to be granted and
the qualifications of the applicant. Rules 32(2),
introduced in 1955, before the grant of V’s application,
shows that individual qualifications of the applicants
including their special knowledge, .their capacity to engage
technically efficient staff, their financial soundness and
stability, bad to be taken into account in determining the
question of priority. There is no prohibition against the
grant of an application on the ground that the application
is defective or not accompanied by a map. There is also no
provision in the Act showing that defects in an application
could. not be subsequently removed. The form of the
application is subordinate to the essential facts to be
taken into account before granting a lease. The information
given in the application is intended for the satisfaction of
the authorities granting the lease, so that, .after
considering the merits and making a grant up Proper details
are embodied in the lease actually granted. ply of
necessary details is directory and not mandatory. It was
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not the cage here that as a result of the defects in V’s
application the lease itself could not be executed.
Therefore, the mere want of a map or of details describing
the area for which the lease was applied for, would not make
the application itself void or of no effect. If it did not
produce a defect which affected the validity of the leak,
and the details supplied in the application corresponded
with the contents of the lease after- the alleged lacuna had
been removed the grant of the lease to V was valid. [669-F-
H; 67OB-F]
(2) In order to enable a legal representative to continue a
legal proceeding, the right to sue or pursue a remedy must
survive the death of his predecessor. Under the rules, the
right of an applicant on the strength of a superior claim
cannot be separated ’from his personal qualifications.
[671 G-H]
666
Moreover, there is no provision in the Rules for imploding
an heir to continue the application for a mining lease. The
scheme under the Rules is that if an applicant dies, a fresh
application has to be presented by the heirs or legal
representatives if they desire to apply far the grant of a
lease. It may be that they may obtain priority over an
earlier applicant if they are continuing the business or
industry of the decreased, but it would be on a fresh
application setting out their qualifications. Therefore,
the heirs had no right to continue the appeal in this Court.
[672A-C]
Dhani Devi v. Sant Bihari & Ors., [1969] 2 S.C.R. 507,
distinguished.
(3) The acceptance of V’s claim by the Government on the
strength of which he had made his investment, clothes his
claim with an equity which could not be defeated without
clear proof of some overriding legal right or terest of
another claimant, and, there is no such right in the heirs
of B [672G-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2580 of 1969.
Appeal from the judgment and order dated August 6, 1969 of
the Andhra Pradesh High Court in Writ Petition No. 3124 of
1967.
A.Subba Rao, for the appellants.
S.P. Nayar, for respondent No. 1.
P.Ram Reddy and A. V. V. Nair, for respondents Nos. 2 and 3.
P. P. Rao and T. V. S. Narasimhachari, for respondent No. 4.
The Judgment of the Court was delivered by
Beg, J. This appeal, from a Judgment and order of the Andhra
Pradesh High Court dismissing the appeallant’s Writ
Petition, comes up before us by Certificate under Article
133(1)(a) of the Constitution, in the following
circumstances
One Buchivenkata Rao had filed application on 1-9-1959 and
1-8-1960 under Mineral Concession Rules, There in after
referred to as ’the Rules’ before the Collector of Nellore,
for the grant of a mining lease to him of an area mentioned
in his applications. He alleged that his applications
complied with the rules framed under the Mines and Minerals
(Regulation and Development Act of 1957. The State
Government rejected the application of 11-8-1960 on 7-12-
1960, but granted the application made on 4th October, 1950,
by the Respondent Kumara Rajah of Venkatagiri (hereinafter
referred to as Venkatagiri). The ground on which the
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application of the appellant Rao, was rejected was that
Venkatagin’ had a prior claim. The appellant Rao had then
preferred a Revision application to the Central Government
under the Mineral Concession Rules which came into force on
11th November, 1960,.
667
The Central Government had rejected the revision application
on the ground that it was not filed within the prescribed
time. Upon a Writ Petition filed in the High Court of
Andhra Pradesh, the order of rejection of the revision
application by the Central Government was quashed. The
Central Government was directed to consider Rao’s
application on merits. The Central Government had, after
giving due opportunity to be heard to the appellant Rao,
dismissed his application on 18th October, 1967, holding
that Venkatagiri had priority over his claim. Rao then
filed a second Writ Petition which was dismissed on 26th
September, 1969. The judgment and order of dismissal are
now under appeal before us.
The judgment of the High Court shows that the appellant Rao
had relied on the following three grounds only at the time
of agruments on his Writ Petition :-firstly, that the
application of Venkatagiri was not made in accordance with
Rule 27 and 32 of the said Rules of 1949; secondly, that
the application of Venkatagiri was not for a fresh lease but
for the continuation of a previous lease so that it did not
fall within the purview of the rules; and, thirdly, that the
Central Government had, not considered in detail the various
comments offered by the State Govt. with regard to each
ground of revision.
A contention noticed by the High Court, as a separate ground
of attack, was that the Central Govt. had relied upon a
ruling of a Single Judge of the Punjab High Court in J. A.
Trivadi Brothers v. Union of India(1), holding that Rules 27
to 29 did not make defective applications void, but this
view had been reversed by a Division Bench of that Court.
This was no really a separate ground but a contention
relating to the effect of failure to comply strictly with
Rules 27 to 29 of the Rules of 1949. The main contention of
Rao was that the application of Venkatagiri had to be
disregarded as it failed to comply with the rules, and,
therefore, was not an application in the eye of law, so
that, out of several competing applications, Rao’s
application. ought to have been granted. The High Court,
made it clear that other grounds were taken in Rao*
petition, but were not argued there. In this Court, a fresh
ground, neither taken nor argued before the High Court, is
sought to be urged in addition to the other grounds before
the High Court which were repeated before us. We will take
up the grounds advanced in the High Court and again in this
Court before considering the entertain ability of the fresh
ground.
At this stage, before dealing with the first ground, we may
set out the relevant rules 27 and 32 of 1949 which run as
follows
"27. Application for mining, lease-An
application for a mining lease shall, in case
of land in which the mine-
(1) A.I.R. 1959 Punjab 589.
668
rals belong to Government, be made to the
State Government concerned through such
officer or authority as it may appoint in this
behalf and shall contain the following
particulars :-
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(a)(i) If the applicant is an individual, his
name, nationality, profession, and residence,
and
(ii) if the applicant is a partnership firm, a
company or an association or
body of
individuals, whether in corporated or not, its
name, nature and place of business, place of
registration of incorporation and except in
the case of a company which is not a private
company as defined in the Indian Companies
Act, 1913 (VII )of 1913) the names and
addresses of the individuals constituting such
partnership firm, company, association or
body.
(b) The number and date of the notification of
the grant or renewal of certificate: of
approval of the applicant;
(c) A description, illustrated by a map or
plan, showing as accurately as possible the
situation, boundaries and area of the land in
respect of which the lease is required;
(d) The mineral or minerals which the
applicant intends to mine;
(e) The areas and minerals within the
jurisdiction of the State Government for which
the applicant or any person joint in interest
with him already holds a mining lease;
(f) If the applicant holds a prospecting
license for the area applied for, the number
and date of such license;
(g) The period for which the lease. is
required; and
(h) The industry, if any, which the applicant
proposes to develop and the location of such
industry.
Explanation :-The map or plan referred to in
item (c) should give sufficient information to
enable identification of the area in respect
of which the lease is required".
"32. Priority-(1) If more than one
application regarding the same land is
received, preference shall be given to the
application received first. unless, the State
Govern-
669
ment, for any special reason, and with the
prior approval of the Central Government
decides to the contrary.
Provided that where more than one application
in respect of the same land is received on the
same day, the State Government, after taking
into consideration the matters specified in
sub-rule (2) and after obtaining the prior
approval of the Central Government, may grant
the mining lease to such one of the applicants
whom it considers to be the most suitable.
Provided further that no application shall be
deemed to be incomplete for the purposes of
this rule on account of the omission or
misdescription of the number and date of the
prospecting licence and of the profession or
residence or nationality in the case of an
individual or of the place of business in the
case of a partnership firm, a company or an
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association or body of individuals, whether
incorporated or not, if such omission or
misdescription, is corrected within a period
specified by the State Government or an
Officer appointed by that Government in this
behalf.
(2) The matters referred to in the proviso to
subrule (1) shall be the following namely:-
(i) experience of the applicants in mining;
(ii) financial soundness and stability of the
applicants;
(iii) special knowledge of geology or mining
and the technical staff already employed or to
be employed for the work.
It is clear to us that the details mentioned in Rule 27 are
intended for the correct identification of the individual to
whom the lease is to be granted, the minerals which are to
be mined, the area in respect of which the lease was to be
granted, and the qualifications of the applicant.
Considerable emphasis was placed on the word ’shall’ in Rule
32 with regard to the priority to be given between different
applicants. This rule does not directly affect the question
whether an application for a lease could be considered a
proper application or not by the authorities concerned. The
second proviso to this rule, however, provides for the
manner in which certain defects may be cured. Rule 32, sub-
rule (2), introduced in 1955 before the grant of the
application of Venkatagiri, shows that the individual
qualifications of the applicants including their special
knowledge, their capacity to engage technically efficient
staff, their financial soundness and stability, had to be
taken into account in determining the question of priority.
Again Rule
670
26, imposing certain restrictions, prohibits the grant of
the lease to any person who does not hold a certificate of
approval from the State Government or who has not produced
an Income tax clearance certificate. It does not prohibit
any grant on the ground that the application for it is
defective or not accompanied by a map. The form of the
application seems to be subordinate to the essential facts,
to be taken into account before granting a lease.
There is no provision in the Act showing that the defects in
an application which is accompanied by the fee prescribed in
Rule 28 cannot be subsequently removed. The information
given in the application is intended for the satisfaction of
the authorities granting the lease so that, after
considering inherits and making a grant, proper details are
embodied in the lease actually granted. It was not urged
anywhere that, as a result of any defects in the applica-
tion, of Venkatagiri, the lease. itself could not be
executed. This indicates that the omission to file a proper
map initially was cured.
The High Court had relied on a decision of this Court in
Banarsi Das v. Cane Commissioner, U.P.(1) where conditions
similar to those laid down by Rule 27 were held to be
directory. It had also held that, even assuming that some
of the requirements in the rules may be mandatory, it could
not be held that the mere want of a map or of details,
describing the area for which the lease was applied for,
would make the application itself void or of no effect. We
are, therefore, unable to find any error in the view adopted
by the High Court that the supply of necessary details was
directory and not mandatory. If it did not produce a defect
which affected the validity of the lease, and the details
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supplied in the application corresponded with the contents
of the lease after the alleged lacuna had been filed up, the
grant of the lease to Venkatagiri was valid.
As regards the second ground that the application of
Venkatagiri had to be interpreted as an application for the
continuation of an already existing lease and not for the
grant of ’a fresh lease, we find that the High Court had
rejected this contention by pointing out that the
application was on a form which complied, with Rule 27 so
that it could be treated as a fresh application. We find
nothing wrong with the High Court’s interpretation of the
application made by Venkatagiri.
The High Court had also found, as a fact, that the order of
the Central Government disclosed that it was based on
relevant considerations and could not be said to have
omitted consideration of anything material simply because
the details of matters considered were not fully set out.
We concur with this view and are
(1) A.I.R. 1963 S.C. 1947.
671.
unable to hold that the order of the Central Government was
vitiated on the third ground urged on behalf of Rao.
We may now refer to the fresh question which was sought to
be raised on behalf of the appellant by means of an
application before us. This was, that this Court had
pointed out in Nookala Satharamaiah v. Kotaiah Naidu &
Ors.(1), that, on 15th September, 1956, the Mineral
Concession Rules were amended and. a new sub-rule 28(1-A)
was introduced which provided that every application under-
Rule 27, shall be disposed of within nine months from the
date of its receipt, and had, held that the effect of- the
amended Rule 57, which was further amended on 14-9-1956, was
that an application remaining undisposed of within the
period prescribed will be deemed to be rejected. It was
urged that we should allow this point to be argued for the
first time in this Court although it was neither raised nor
argued in the High Court. it was submitted that this was a
pure question of-law on which no investigation of facts
afresh was required.
On the other hand, it has been contended, on behalf of the
contesting respondent, that a new _point should not be
allowed to be urged at this stage for which reliance was
placed on Bhagwati Saran & Anr. v. State of Uttar
Pradesh(2), S. L. Aggarwal v’ General Manager, Hindustan
Steel Ltd.(3), Chitra Ghosh & Anr.v. Union of India &
Ors.(4)
Even if we had been disposed to consider this new ground on
the plea that exceptional circumstances justified our going
into it, we must here point out another fact which affects
the very maintainability of the appeal before us now.The
appellant B. Rao died on 18-2-1970. His sons filed an
application in this Court on 20-7-1970 for impleading them
as the heirs and legal representatives of the deceased.
This application was tentatively allowed, on 3-11-1970,
under the orders of the Registrar of this Court, subject to
such objections to the rights of the substituted appellants
to be heard and to continue this appeal on behalf of the
deceased’ as may be taken before us at the hearing of the
appeal.
It has to be remembered that, in order to enable a legal re-
presentative to continue a legal proceeding, the right to
sue or to pursue a remedy must survive the death of his
predecessor. In the instant case, we have set out
provisions showing that the rights which an applicant may
have had for the grant of a mining lease, on the strength of
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an alleged superior claim, cannot be separated from his
personal qualifications. No provision has been pointed out
to us in the rules for impleading an heir who could
continue. the application for a mining lease. The scheme
under the rules
(1) [1971] (1) S.C.R. 153.
(3) [1970] (3) S.C.R. 363 at 365.
(2) [1961] (3) S.C.R. 563 at 568.
(4) [1970] (1) S.C.R. 413 at 420.
672
seems to be that, if an applicant dies, a fresh application
has to be presented by his heirs or legal representatives if
they themselves desire to apply for the grant of a lease.
It may be that the heir,, and legal representatives, if they
are continuing the business or industry of the deceased and
have, the required qualifications, obtain priority over an
earlier applicant on account of special reasons for this
preference. But, in each case, they have to apply afresh
and set out their own qualifications. It has not been shown
to us that any of the legal representatives have applied
afresh. The legal, representatives only claim to be
entitled to succeed the deceased Buchivenkata Rao under a
will. The assumption underlying the application is that,
whatever right the deceased may have had to .obtain a lease
survived and vested in the heirs after his death. We are
unable to accept the correctness of this assumption.
In support of the contention on behalf of the heirs of
Buchivenkata Rao, our attention was drawn to the case of
Dhani Devi v. Sant Bihari & Ors.(1) which related to a right
to obtain transfer of a permit for a Motor vehicle under
Section 61, sub. s. 1(2) of the Motor Vehicle Act. It was
held there that, in the case of the death of an applicant
for the grant of a permit in respect of his motor vehicle,
the Regional Transport Authority had the power to substitute
the person succeeding to the possession of the vehicle in
place of the deceased applicant. It was pointed out there
that the right to the permit was related to the possession
of the vehicle. Moreover, there was a rule enabling the
Transport Authorities to substitute the heir or legal
representatives of the .deceased. No such rule applicable
to the case of the heirs of the deceased Buchivenkata Rao
has been pointed out to us. Therefore, we are unable to
hold that the heirs, who have been heard, had any right to
continue, the appeal before us. This feature of the case is
decisive not only on the right to be heard on the fresh
ground but also on the right to advance any argument in
support of the appeal of the deceased.
We may mention that it was also urged that the matter was
so, old that any reversal of the grant of the mining lease
to Venkatagiri, as long ago as 1960, would involve
considerable dislocation and injury to respondent
Venkatagiri without any fault on his part. The respondent
Venkatagiri must have invested considerable amount of money
in mining operations. The acceptance of the claim of
Venkatagiri by the Government on the strength of which
Venkatagiri made his investment clothes Venkatagiri’s claim
with an equity which could not be defeated without clear
proof of some legal right or interest of another claimant.
We are
(1) [1969] (2) S.C.R. 507.
673
unable to see any such right in the heirs of the deceased
Buchivenkata Rao.
Consequently this ’appeal is dismissed but we make no orders
as to costs in this Court.
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V.P.S. Appeal dismissed.
674