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C. Buchivenkata Rao v. Union Of India And Others
Factual and Procedural Background
On September 1, 1959 and August 1, 1960, Buchivenkata Rao applied to the Collector of Nellore for a mining lease under the Mineral Concession Rules, 1949. The State Government rejected Rao’s 1960 application on December 7, 1960, granting the lease instead to Kumara Rajah of Venkatagiri, whose application dated October 4, 1950 was treated as having priority. Rao’s revision to the Central Government was first dismissed as time-barred; that dismissal was set aside in earlier writ proceedings, and the Central Government eventually rejected Rao’s revision on merits on October 18, 1957. Rao’s second writ petition challenging that decision was dismissed by the Andhra Pradesh High Court on September 25, 1969. The present appeal arises from that dismissal under a certificate granted pursuant to Article 133(1)(a) of the Constitution. During the pendency of the appeal, Rao died on February 18, 1970; his sons were provisionally substituted as appellants.
Legal Issues Presented
- Whether Venkatagiri’s application, alleged to be defective under Rules 27 and 32 of the Mineral Concession Rules, 1949, was void so that Rao’s later application should have been preferred.
- Whether Venkatagiri’s application was in substance a request for continuation of an earlier lease rather than a fresh lease, and therefore outside the scope of the rules governing priority.
- Whether the Central Government failed to consider material comments of the State Government when rejecting Rao’s revision.
- Whether a new ground based on the 1956 introduction of Rule 28(1-A) (nine-month deeming rejection) could be raised for the first time before the Supreme Court.
- Whether Rao’s right to pursue the appeal survived his death and could be validly continued by his legal representatives.
Arguments of the Parties
Appellant's Arguments
- Venkatagiri’s application lacked mandatory particulars (notably an accurate map) required by Rule 27, rendering it non-existent in law; hence Rao’s application should have received priority under Rule 32.
- The application was in reality for renewal/continuation of a prior lease and therefore not entitled to priority.
- The Central Government’s order did not address specific State Government comments raised in Rao’s revision.
- (New ground) Under amended Rule 28(1-A) an application not disposed of within nine months stands rejected; therefore, all later proceedings were void.
Respondent's Arguments
- A defective application is not void; deficiencies could be cured and were in fact cured before grant of the lease.
- The new Rule 28(1-A) point cannot be urged for the first time in the Supreme Court, relying on precedents that bar fresh issues at the appellate stage.
- Rao’s right, being personal and dependent on his own qualifications, did not survive his death; his heirs have no standing without a fresh application under the Rules.
- Equities favour maintaining the long-standing lease; substantial investments have already been made by Venkatagiri.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| J.A. Trivedi Brothers v. Union of India, AIR 1959 Punj 589 (Single Judge) and Division Bench reversal | Whether non-compliance with Rules 27-29 renders an application void | Used to analyse the effect of defects; Court ultimately agreed that such defects do not void an application. |
| Banarsi Das v. Cane Commissioner, AIR 1963 SC 1947 | Directory vs. mandatory nature of procedural requirements | Cited to support the view that Rule 27 requirements are directory, not mandatory. |
| Nookala Satharamaiah v. Kotaish Naidu, (1970) 2 SCC 13 | Deeming rejection of applications not decided within nine months (Rule 28(1-A)) | Relied on by appellant for new ground; Court declined to entertain the point because it was not raised earlier. |
| Bhagwati Saran v. State of U.P., (1961) 3 SCR 563 | Bar on raising new points at appellate stage | Supported refusal to entertain appellant’s fresh legal ground. |
| S.L. Aggarwal v. General Manager, Hindustan Steel Ltd., (1970) 1 SCC 177 | Same principle as above | Reinforced the Court’s stance against new grounds. |
| Chitra Ghosh v. Union of India, (1970) 1 SCR 413 | Same principle as above | Again cited on limitation of appellate review. |
| Dhani Devi v. Sant Bihari, (1969) 2 SCR 507 | Survival of right to apply for statutory permit after death | Distinguished; unlike motor-vehicle permits, no rule allowed substitution of heirs for a mining-lease application. |
Court's Reasoning and Analysis
On alleged defects in Venkatagiri’s application: The Court held that the particulars in Rule 27 are intended mainly for identification and assessment of an applicant’s qualifications. Citing Banarsi Das, it agreed with the High Court that these requirements are directory; defects such as absence of a map could be and were cured before the lease was executed. Therefore the application was valid and capable of consideration for priority under Rule 32.
On the nature of Venkatagiri’s application: It was filed on the prescribed form and complied with Rule 27, enabling the High Court (and now the Supreme Court) to treat it as a fresh application rather than a request for continuation of an existing lease.
On the adequacy of the Central Government’s order: The Court upheld the High Court’s finding that the Central Government had considered all relevant materials; mere absence of detailed reasoning did not vitiate the order.
On the new Rule 28(1-A) ground: Relying on Bhagwati Saran, S.L. Aggarwal and Chitra Ghosh, the Court refused to entertain a legal argument raised for the first time in the Supreme Court, particularly because it might have required factual investigation had it been timely raised.
On survivorship and substitution: The right to obtain a mining lease is intimately connected with the personal qualifications of the applicant (experience, financial soundness, etc.). The Rules provide no mechanism for heirs to step into the deceased applicant’s shoes; instead, they must file a fresh application demonstrating their own qualifications. Consequently, Rao’s right did not survive his death, and his heirs lacked standing to continue the appeal.
Equitable considerations: The Court noted the significant passage of time and the respondent’s investment in mining operations since 1960, reinforcing the conclusion that the appeal should not succeed absent a clear overriding legal right.
Holding and Implications
DISMISSED. The Supreme Court affirmed the High Court’s dismissal of Rao’s writ petition, refused to entertain new grounds, and held that Rao’s heirs could not maintain the appeal.
Implications: The lease granted to Kumara Rajah of Venkatagiri remains undisturbed, and no new legal precedent was set beyond reaffirming that (i) procedural requirements under Rule 27 are directory and curable, (ii) new issues are generally barred at the Supreme Court stage, and (iii) rights to apply for a mining lease do not automatically survive the applicant’s death.
M.H Beg, J.— This appeal, from a Judgment and order of the Andhra Pradesh High Court dismissing the appellant's writ petition, comes up before us by a certificate under Article 133(1)(a) of the Constitution, in the following circumstances.
2. One Buchivenkata Rao had filed applications on September 1, 1959 and August 1, 1960, under Mineral Concession Rules, (hereinafter 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 August 1, 1960, on December 7, 1960, but granted the application made on October 4, 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 November 11, 1960. 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 the opportunity to be heard to the appellant Rao, dismissed his application on October 18, 1957, holding that Venkatagari had priority over his claim. Rao then filed a second writ petition which was dismissed on September 25, 1969. The Judgment and order of dismissal are now under appeal before us.
3. The Judgment of the High Court shows that the appellant Rao had relied on the following three grounds only at the time of arguments on his writ petition: firstly, that the application of Venkatagiri was not made in accordance with Rules 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 the various comments offered by the State Government with regard to each ground of revision.
4. A contention noticed by the High Court, was a separate ground of attack, was that the Central Government had relied upon a ruling of a Single Judge of the Punjab High Court in J.A Trivedi Brothers v. Union of India AIR 1959 Punj 589 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 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 other grounds before the High Court which were repeated before us. We will take up the grounds advanced in High Court and again in this Court before considering the entertainability of the fresh ground.
5. 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 minerals 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 —
(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 incorporated 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 private company as defined in the Indian Companies Act, 1913 (VII of 1913) the means 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 licence for the area applied for, the number and date of such licence;
(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 Government for any special reasons 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 consider 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 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 sub-rule (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.”
6. 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 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.
7. 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 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 application of Venkatagiri, the lease itself could not be executed. This indicates that the omission to file a proper map initially was cured.
8. The High Court had relied on a decision of this Court in Banarsi Das v. Cane Commissioner, U.P. AIR 1963 SC 1947 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 of details, describing the area 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 filled up, the grant of the lease to Venkatagiri was valid.
9. As regards the second ground that the application of Venkatagiri had to be interpreted as 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.
10. The High Court had also found, as a fact, that the order of the Central Government disclosed that it was based on relevant consideration 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 unable to hold that the order of the Central Government was vitiated on the third ground urged on behalf of Rao.
11. 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. Kotaish Naidu (1970) 2 SCC 13, (1971) 1 SCR 153 that, on September 15, 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 August 14, 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 fresh was required.
12. 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 v. State of Uttar Pradesh (1961) 3 SCR 563 at 568, S.L Aggarwal v. General Manager, Hindustan Steel Ltd. (1970) 1 SCC 177, (1970) 3 SCR 363 at 365, Chitra Ghosh v. Union of India (1970) 1 SCR 413 at 420.
13. 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 as now. The appellant B. Rao, died on February 18, 1970. His sons filed an application in this Court on July 20, 1970, for impleading them as the heirs and legal representatives of the deceased. This application was tentatively allowed, on November 3, 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.
14. It has to be remembered that, in order to enable a legal representative 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 provision showing that the rights which an applicant may have had for the grant of a mining lease, on the strength of 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 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 heirs 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 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.
15. 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 (1969) 2 SCR 507 which related to a right to obtain transfer of a permit for a Motor Vehicle under Section 61, sub-section (2) of the Motor Vehicles 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 routed 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.
16. 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 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 over-riding legal right or interest of another claimant. We are unable to see any such right in the heirs of the deceased Buchivenkata Rao.
17. Consequently, this appeal is dismissed but we break no orders as to costs in this Court.
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