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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