C. BUCIDVENKATA RAO versus UNION OF INDIA & ORS.

Beg, J. This appeal, from a Judgment and order of the Andhra Pradesh High Court dj_smissing the appeallant's Writ ·Petition, comes up before us by a Certificate under Article I 33(1)(a) of the Constitution, in the following circumstances :

p. 666, margin E

One Buchivenkata Rao had fil~d application on 1-9-1959 and 1-8-1960 under Mineral Concession Rules, (hereinafter referred to as 'the Rules') before-the Collector of. Nellore, for the giant 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 1-8-1960 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 application of the appellant Rao. was rejected was that Venkatagiri 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.

p. 666, margin F

The Central Government had rtjected 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 vf 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 ~d to the appellant Rao, dismissed his application on 18th October, 1967, holding that Venkatagiri had priority over his cfaim. 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.

p. 667, margin A

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 Pe_tition :-firstly, that the application of Venkatagiri was not maqe 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. •

p. 667, margin C

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

p. 667, margin D

Union of lndia( holding that Rules 27 to 29 did not make defective applications ·void, biut this view had been reversed by a Division Bench of that Court. This was not/ 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's 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 ol!her 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 entertainability of l!he fresh ground.

p. 667, margin E

At this stage, before dealing with the first ground, we may set out the ,elevant rules 27 and 32 of 1949 which run as follows :- "27. Application for mining; lease-An application for .

p. 667, margin G

a iQining lease shall, in case of land in which the mine- (I) .A.I.R. 1959 Purtjab rals belong to Govjlrnment, 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 :-

pp. 667–668, margin H

(a)(i) If the_ applicant is an individual; his name, nationality, profession, and residence, and

p. 668, margin A

(ii) if the applicant is a partnership firm, a company or an association or body of individuals, whether ini:orporated or not; its name, nature and place of business, place of registratio11 of incorporation and except in the case of a company which is not a private company as defined in the Indian Companies Act, 1913 (VU of 1913) the names and addresses of the individuals constituting such partnership firm, company, association or body.

p. 668, margin B

(b) The number and date of the notification of the grant or renewal of certificate of approval of the applicant;

p. 668, margin C

(c) A descript!on, illustrated by a map or plan, showing as accurately as possible the situa~oll, boundaries and area of the land in respect of which the lease is required; · · ·

p. 668, margin D

( d) The mineral or minerals which the applicant intends to mine;

p. 668, margin D

(e) The areas and minerals within the jurisdiction of the State Qovernment for which the applicant or any person .ioint in interesLwith him already holds a .mining lease;

p. 668, margin D

(f) If the applicant holds· a prospecting !icellse for the area applied for, the number and date of such license;

p. 668, margin D

(g) The period for which the lease is required; and

p. 668, margin D

( h) The industry, if any, which the applicant proposes to develop and the location of such industry.

p. 668, margin D

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". 2. Prioritiy-{ 1) If more than one application' fe$8i'ding. the same land is received,· pmerence shiill be given t.o the application received first, unless the State Govern~ ment, for any special reason, and with the prior approval of the Central Government decides to the contrary.

pp. 668–669, margin G

Provided that where more than one application in respect of the same land is received on the same day, the State GovernmentJ afier taking into. consideration the matters specified in sub-rule (2) an<I 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 t:he most suitable.

p. 669

Provided further that no application shall be deemed to be incomplete for the purposes of this rule on account ,1f 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 aase of a partnership firm, a company pr an 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 thl!-t Goverument in' this behalf.

p. 669, margin B

(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 em-

p. 669, margin D

ployed for the work.

p. 669, margin E

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 ~e 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 dbes illo't directly affect the question whether an application for a lease could be considered a proper application or not by the authorities concerned. The se<iond .proviso to this rule, however, pro'llides for the manner in which :ertain defects may be cured. Rule 32, sub-rule (2), introduced Ill 1955 )'ef?r_e !lie gra!!t of .the application of Venkatagiri, sho_l"s tha! the md1v1dual qu:ilificatio!1s .of the applicants including their special knowledge, their capacrty to engage technically efficient staff, their financial SOWl.dness and stability, had to be taken into account in determining the question of priority. Again Rule 26, imposing certain restrictions, prohibits the grant of the lease to any person who doe~ !IOI hold a certificate of approval from the State Government or who has not produced an Income tax clear· ance certificate, It does not prohibit anY· grant on the ground that t:he application for it is defective or not accompanied by a map. The form of the application seems to be subordinate to the essen· tial facts to be taken into account before granting a lease.

pp. 669–670, margin F

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 grant· ing the lease so that, after considering merits' 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· ti on. of V enkatagiri, the lease itself could not be ~uted. This indicates that the omission to file a proper map in?tially was cured.

p. 670, margin B

·The High Court had relied on a decision of this Court in Banarsi Das v. Cane Commissioner, U.P.( where .conditions similar to those laid down by Rule 27 were held to be directory. It had also held that, even assuniing 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 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.

p. 670, margin C

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.

p. 670, margin F

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 an:Ything material sil!lplv because the details of matters considered 'were not fully s.et out. We concur with this view and are .(1)-A.I.R. .. unable to hold that the order of the Central Government was vitiated on the third ground urged on behalf of Rao.

pp. 670–671, margin G

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. (I), that, on 15th Sep· tember, 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 tihe 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 r!lffiaining undisposed of within the period prescribed will be deemed to be rejected. It was urged that we should allow this point to be ar£ued 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.

p. 671, margin A

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('), S. L. Aggarwal v. General Manager, Hindustan Steel Ltd.('), Chitra Ghosh & Anr. v. Union of India d: Ors.(').

p. 671, margin D

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 a.nother 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 impll)llding 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 decea<ed as may be taken before us at the hearing of the appeal.

p. 671, margin E

It .has to be remembered that, in order to enable a legal representative to continue a legal proceeding, the right to sue or to pur- ~ue a remedy must survive the death of his predecessor. In the ms!31Jt case, ~e have set out provisions showing that the rights which an appltcant may have had for the grant of a mining lease, on the .strength of ah alleged superior claim, cannot be separated from his personal qualifications. No provision 4as 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 S.C.R. S.C.R. at 568. S.C.R. at (4) S.C.R. at seems to be that, .if an applicant dies, a fresh application bas 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 heirs and 1egal representat!_ves, if lj!J.ey are continuing the business or industry of the dee~ and have the required qualifications, obtain priority over an earlier applicant on account of speciltl. reasons for this preference. But, in each case, they have to apply afresh and set out their own qualifical!ions. It- has not been shown to us that any of the legal repre~ntatives have applied afresh. . The legal representatives only claim to be entitled to sucCeed the deceased Buchivenkata Rao under a will. The assumption 1111derlying the application is that, whatever right the deceased may have had to -0btain a lease survived and vested in the heirs after his ·death. We are unable to accept the correclness of this assumption.

pp. 671–672, margin F

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.( which related to a right to obtain transfer of a permit for a Motor vehicle under Section 61, sub. s. (2) of the Motor Vehicle Act It was.held there that, iµ the case -0f 1he 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 suc,ceeding: to the possession of the vehicle in place of the deceased applicant: It was pointed out there that the right to the permit was relate4 to tile possession of the vehicle. Moreover, there was a rule enabling the Transport Authorities to substitute the heir or Jegiil representatives of the deceased. No such rule applicable to the case of .the heirs of the dece.!ised Buchivenkata Rao bas been pointed out. tp vs. Therefore, we are unable to hold· that the heirs, who have been heard, had any right to continue !he appeal before us. This feature of. the case is decisive not only on die right 'to be heard on the fresh ground but also on the right to advance any l\l'gumellt in· support of the appeal of the deceased .

p. 672, margin C

. We may mention that it was also urged that the matter was so old that any reversal ?f the grant of the mining lease to Venkata· girl, as Jong ago as 1960, would involve considerable dislocation and injury to respondent Venkatagiri without any fault on his part. The respondent V enkatagiri must have invested · considerable amount of money in mining operations. The acceptance of the claim of Venkatagiri by the Government on the strength of whicli Venkatagiri made his investment clothes Venkatagiri's claim with an equity which could not be defeated without clear proof of. liOlllC 'Over-riding legal right or interest of another claimant. We are S,C.R. A unable to see any such right in the heirs of the deceased Buchivenkata Rao.

pp. 672–673, margin E

Consequently this appeal is dismissed but we make no orders

p. 673

as to costs in this Court. B V.P.S. Appeal dismissed ..

p. 673