Appeals Nos
2 1 21 and 2122 of 1969
Appeals from the judgment and order dated July 18 1969 of the Andhra Pradesh High Court in W P Nos 464 and 602 of 1965
D Narasaraju A Subba Rao and K R Sharma for the appel lant in both the appeals M C Setalvad P Parameswara Rao V Rajagopal Reddy S L Setia and K C Dua for respondent No 1 in both the appeals
V A seyid Muhammad and section P Nayar for respondent No 2 in both the appeals
156 P Ram Reddy and A V V Nair for respondents Nos 3 and 4 in CA No 2121 of 1969 and respondent No 3 in CA No 2122 of 1969
The Judgment of HEGDE and GROVER JJ was delivered by HEGDE J SHAH J delivered a dissenting opinion  Shah J I agree that Appeal No 2122 of 1969 must be dismissed
I also agree that if the states to dispose of the application for grant of a mining lease within the time prescribed by the rules the failureresults in refusal to grant the lease
The High Court was in error in holding that in the absence of a provision enacting that even if the application stands rejected for failure to pass an order within the time prescribed the State Government has power to issue a licence
The High Court was again in error in holding that because of the representations made by the State before Bhimasankaran J in Writ Petition No 1237 to 1957 the State Government were estopped from contending that the application was by the first respondent must be deemed to have been refused
But I am unable to agree that the Central Government was competent in exercise of its power of review against the order of the State Government made in compliance with the order of Basi Reddy J in Writ Petition No 888 of 1957 to set aside the order so as in effect to overrule the judgment of the High Court
The relevant facts may be recalled
The Central Government made an order on September 25 1957 in the review application filed by the first respondent holding that his application was premature and that it was for the State Government to dispose of the application within six months of August 31 1957
The first respondent then moved Petition No 888 of 1957 for a mandamus directing the State Government to dispose of his application
By order dated November 4 1958 Basi Reddy J observed that r 572 as amended by SRO No 2753 is intended for the benefit of the applicant and does not relieve the State from per forming the statutory functions imposed on it under rule 171 and 172 viz of granting or refusing the licence
The State Government then heard the application and granted the mining lease for which the first respondent had applied on September 15 1953
Against that order the appellant moved a review petition
The Central Government by order dated February 15 1965 allowed the review petition and set aside the grant in favour of the first respondent
Granting that the High Court erroneously issued a writ of mandamus directing the State Government to perform its func tions it was in my judgment not open to the Central Government 157 in effect to exercise appellate authority over the judgment of the High Court
If the order was erroneous it could be set aside by an appropriate proceeding before a Division Bench of the High Court or before this Court
But the Central Government had no power to set aside the order on the view that the High Court had reached an erroneous conclusion
To accede to the contention that the executive has the power when exercising quasi judicial functions to sit in appeal over the decision of the High Court is to destroy the scheme of division of powers under our Constitution
I see no reason for making a distinction be tween the effect of an order made by the High Court and carried out by the State and an order made by the High Court and confirmed in appeal by this Court and carried out by the State
In my view article 141 of the Constitution has no bearing on that question
If this Court decided a question of law or of fact or a mixed question of law and fact arising in an appeal against an order passed by the High Court in a writ petition against the action of the State Government granting or refusing to grant a licence it would not in my judgment be open to the Central Government hearing a review petition against the order of the State Government in compliance with the order of this Court to set aside the order so as to upset the order of this Court
That is so not because of article 14 1 but I because neither the Legislature nor the executive is invested with powers to supersede judgments of Courts
The Legislature may if competent in that behalf change the law but cannot supersede a judgment of the Court
The executive has no power to change the law and no power to supersede the judgment of the Court
It was however said that the appellant was not impleaded as a party to Writ Petition No 888 of 1957 and he could not seek redress in a superior court against the order of Basi Reddy J
But it is settled by a long course of authorities that a person who has not been made a party to a proceeding may still appeal with leave of the appellate Court provided he might have properly been made a party to the proceeding  see Re B  an Infant1
In In re
Securitie Insurance Company2 Lindley LJ observed at p 413  I understand the practice to  be perfectly well settled that a person who is a party can appeal of course within the proper time without any leave and that a person who without being a party is either bound by the order or is aggrieved by it or is prejudicially affected by it cannot appeal without leave
It does not require
much to obtain leave
If a person alleging him 1 CA 2 158 self to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it but without leave he is not entitled to appeal
 The rule has been accepted by the High Courts in India  see The Province of Bombay vs Western India Automobile Associa tion1 Ponnalagu vs State of Madras2 and Pullayya vs Nagbhushanam
3 The appellant could undoubtedly have been made a party to a petition before the High Court
lie could therefore challenge the correctness of the order made by Basi Reddy J No objection could be raised against the grant of leave to him to appeal on the ground that he was not a party to the Writ Petition No 888 of 1957
In my judgment therefore Appeal No 2121 of 1967 must also fail
Hegde J
These appeals by certificate arise from the common judgment of the High Court of Judicature at Andhra Pradesh in Writ Petitions Nos
464 and 602 of 1965
The appellant herein was the petitioner in Writ Petition No 602 of 1965 and the 5th respondent in Writ Petition No 464 of 1965
In this case it will be convenient to formulate the issues arising for  decision after setting out the relevant facts
Amrutham Kotaiah Naidu the 1st respondent in these appeals applied for the grant of a mining lease in respect of 915 acres and 18 cents of lands in Appalanarasinmhapuram hamlet of Cheruvumadhavaram in Khammameth Teluqa of Warangal District of the then Hyderbad State on September 15 1953
After production of agreement with the pattedars lease in respect of lands comprising 57 acres 25 Gunthas was granted to him as per the order of the Director of Mines and Geology dated January 9 1954
That order is silent as regards the other areas included in his application
Thereafter the respondent was pressing the State Government to  rant him on lease the remaining areas included in his application
Meanwhile on November 21 1955 the appellant applied for the grant of a mining lease of a portion of the area for which the respondent had earlier submitted his application
The State Government granted on mining lease to various persons some of the areas in respect of which the respondent had asked for a mining lease
Obviously aggrieved by those grants the respondent moved 1 ILR 2 ILR 3 ILR
FB 159 the Central Government under rule 57 of the Mineral Concession Rules 1949 to be hereinafter referred to as rules on December 8 1955 seeking a directicon to the State Government to grant to him the lease asked for by him by his application of September 15 1953
He further requested the Central Government to direct the State Government to stop granting further areas to other appli cants in Appalanarasimhapuram village pending investigation of the matter and pending decision of the Central Goverrunent
Meanwhile on December 27 1955 the State Government granted on mining lease 1 acre and 20 cents of land to the appellant from out of the area included in the 1st respondents application
On July 18 1956 the Central Government dismissed the review petition made by the 1st respondent on December 8 1955 with these observations Sir I am directed to refer to your application dated the 8th December 1955 on the subject and to say that after careful consideration of the facts stated therein the Central Government have come to the conclusion that there is no valid ground for interfering with the decision of the Government of Hyderabad rejecting your application for grant of mining lease for iron ore in Appanarasimhapuram and Raigudam villages Khammameth district
Your application for revision is therefore rejected
Yours faithfully Sd G C Jerath Under Secretary to the Government of India
 Evidently the Central Government proceeded on the basis that the order of the State Government dated January 9 1954 granting 57 acres and 20 cents of land to the 1st respondent by implication amounted to a rejection of his claim in respect of the other areas
Meanwhile on September 15 1956 some of the rules were amended
After rule 281 anewsub rule 281 Awas inserted
That sub rule reads  Every application under rule 27 shall be disposed of by the State Government within 9 months from the date of receipt of the application
 At the same time rule 57 was also amended
Amended rule 57 reads thus  1 Application for review 1 Where a State Government passes as under i refusing to grant a certificate of approval prospecting license or mining lease 160 iirefusing to renew a certificate of approval prospecting license or mining lease iii cancelling a prospecting license or mining lease iv refusing to permit transfer of a prospecting license or any right title or interest therein under clause iv of sub rule 1 of rule 23 or a niping lease or any right title or interest therein under rule 37 it shall communicate in writing the reasons for such order to the person against whom the order is passed and any person aggrieved by such order may within two months of the date of receipt of such order apply to the Central Government for reviewing the same
2 Where a State Government has failed to dispose of an application for the grant or renewal of a certificate of approval or prospecting license or a mining lease within the period prescribed therefore in these Rules such failure shall for the purpose of these rules be deemed to be a refusal to grant or renew such certificate license or lease as the case may be and any person aggrieved by such failure may within two months of the expiry of the period aforesaid apply to the Central Government for reviewing the case
3 An application for review under this rule may be admitted after the period of limitation prescribed under this rule if the applicant satisfies the Central Government that he had sufficient cause for not making the application within the said period
 A further amendment to that rule 572 was made on August 31 1957
The concerned notification No SRO 2753 reads In exercise of the powers  conferred by section 5 of the Mines and Minerals Regulation and Development Act 1948 the Central Government hereby makes the following further amendment in the Mineral Concession Rules 1949 namely Provided that any such application pending with the State Government on the 14th September 1956 and remaining undisposed of on the 24th August 1957 shall be disposed of by the State Government within six months from the latter date
 On April 16 1957 the 1st respondent filed another review petition before the Central Government
On September 26 1957 161 that petition was dismissed by the Central Government as being premature
The relevant portion of that order reads With reference to your application dated 16th April 1957 on the above subject I am directed to invite your attention to this Ministry s notification No MII 1522657 dated the 21 8 57 copy enclosed amending the Mineral Concession Rules 1949
It will be noticed therefrom that the application for concessions received by the State Govt
prior to the 4th September 1956 and remaining undisposed of on the 31st August 1957 shall be disposed of by them within six months from the latter date
Your application fo r review is therefore premature at this stage and in case your application for Mining Lease is not disposed of by the State Government within the prescribed period you may apply to the Central Government at the appropriate time While making this order evidently the Central Government had overlooked its earlier order dated July 18 1956
After the aforementioned order of the Central Government the 1st respondent moved the High Court of Andhra Pradesh under article 226 of the Constitution in Writ Petition No 888 of 1957 seeking a writ of mandamus to the State Government of Andhra Pradesh to dispose of his application for lease made on September 15 1953 expeditiously
To that petition he made only the State of Andhra Pradesh as the respondent
Neither the Central Government nor the appellant herein were parties to that petition
That petition came tip for hearing before Basi Reddy J on November 4 1958
At the hearing the learned Government Pleader who appeared for the State Government conceded that the application of the petitioner for mining lease on September 15 1953 had not been disposed of by the State Government in the manner prescribed by rule 17 of the Rules  but he contended that that application must be deemed to have been rejected in view of rule 572
The learned judge rejected that contention with the following observations In my opinion this deeming provision is intended for the benefit of the applicant add does not relieve the State Government from performing the statutory functions imposed on it by rules 171 and 172 viz of granting or refusing the licence and in case of refusal of recording in writing the reasons for the refusal and of refunding the application fee He accepted the petition and issued the mandamus prayed for 162 During the pendency of the writ petition No 888 of 1957 the 1st respondent filed another writ petition on December 16 1957 seeking the very relief that he had sought in his earlier writ petition
That petition was disposed of by Bhimasankaram J on August 20 1959 with these observations  It is stated by the learned 3rd Government Pleader that the Government is prepared to dispose of the application of the petitioner on the merits without relying upon rule 572 of the Mineral Concession Rules 1949
in the circumstances the petitioner does not want to press his petition
The writ petition is accordingly dismissed
There will be no order as to costs
 The State Government by its order dated May 27 1961 granted on mining lease to the respondent all the areas for which he had applied an September 15 1953 less those areas which had been earlier leased out to others
Aggrieved by the above order the appellant moved the Central Government under rule 57 on July 7 1961 for review ing the said order
Even before that he had moved the Andhra Pradesh High Court under article 226 of the Constitution on June 13 1961 to issue a writ of mandamus to the State Government to consider his application for mining lease in preference to that of the 1st respondent as according to him the 1st respondent s application should be deemed to have been rejected under rule 572
The High Court rejected that application observing that the appropriate course for him was to move the Central Government under rule 57 against the order of the State Government
Thereafter on 15 2 1965 the Central Government allowed the review petition filed by the appellant and set aside the grant made in favour of the 1st respondent on May 27 1961
It came to the conclusion that the applications made by the appellant the 1st respondent as well as others which were pending before the Andhra Pradesh Government should be deemed to have been rejected on the 1st March 1958 in view of rule 572
Aggrieved by that order the 1st respondent filed Writ Petition No 464 of 1965 praying that the High Court may be pleased to call for the relevant records from the Central Government by issuing a writ of certiorari and quash the order of the Central Government and issue a further writ to the Central Government and to the State Government to grant the lease asked for by him
During the pendency of that petition the appellant filed Writ Petition No 602 of 1965 seeking a writ of mandamus against the Central Government and the State Government to grant him the mining lease for which he had applied
The High Court has allowed the writ petition filed by the 1st respondent and dismissed that of the appellant
Hence these appeals
163 So far as Civil Appeal No 2122 of 1969 is concerned there is no merit in the same
No ground in support of that appeal was urged before us
Hence it fails and it is dismissed
In Writ Petition No 464 of 1965 from which Civil Appeal  No 2121 of 1969 arises the High Court set aside the order of the Central Government on various grounds and upheld the grant made by the State Government in favour of the 1st res pondent
We shall now proceed to consider the correctness of the reasons given by the High Court in support of its order
The High Court was of the opinion that rule 572 was enacted only for the benefit of the applicants for lease license etc
so that they may have an early opportunity to move the Central Government for appropriate orders
In the view of the High Court that rule does not take away the power of the State Government to dispose of the applications made for mining lease etc
even after the period prescribed expires
In support of this conclusion it relied on the decision of the Patna High Court in Dey Gupta and Co vs State of Bihar and Anr1 as well as on the decision of Basi Reddy J in Writ Petition No 888 of 1957 to which reference has already been made
Neither the Patna decision nor the judgment of Basi Reddy J nor the decision under appeal gives any cogent reason An support of the conclusion that the deemed dismissal under rule 572 does not take away the right of the State Government to grant the lease asked for
The Patina High Court in support of its conclusion observed No doubt reading rule 271 A with rule 572 of the Rules it is clear that if the State Government fails to dispose of an application for the grant of a mining lease within nine months it must be deemed to have been refused by it
But this provision is made in my opinion only for the purpose of filing a review application before the Central Government so that an applicant desirous to have a mining lease may not have to wait unnecessarily for a long period without any order being passed on his application
That however does not mean that after the lapse of nine months from the date of receipt of the application the State Govt
ceases to have jurisdiction over the matter so as not to pass any order on any application after the lapse of nine months from the date of its receipt
The expression deemed to be a refusal in rule 572 is only for the purpose of a review application to 1 AIR 1961 Pat
164 be filed before the Central Government and it is not a part of rule 281 A
In this view of the matter the legality of the order passed by the State Government granting a mining lease to respondent No 2 cannot be Challenged on the above ground
 We think that these observations are not correct
If it is otherwise even when a review petition is pending before the Central Government under rule 57 the State Government can make an order on the application made and thus compel the parties to file another review petition
Further if the Central Government gives one direction ins the review petition and the State Government passes an inconsistent order in the original petition there is bound to be confusion
If we read rule 271A
and rule 572 together there is hardly any doubt that after the period prescribed the State Government is incompetent to deal with the applications pending before it
According to rule 572 where a State Government has failed to dispose of an application
for the grant of a mining lease within the period prescribed therefor in the rules such failure shall for the purpose of the rules be deemed to be refusal to grant the lease
The rules referred therein include rule 28 as well
This deemed refusal if read with the mandate given to the State Government under rule 281 A requiring it to dispose of the applications within 9 months of the receipt of those applications there can be hardly any doubt that if the State Government does not dispose of the applications within the time prescribed it is deemed to have refused those applications for the purpose of rule 28 as well as rule 57
The High Court was wrong in thinking that in the absence of a provision providing for deemed rejection in rule 281 A the contravention of that rule does not take away the jurisdiction of the State Government
That conclusion ignores the words in rule 572 that deemed rejection is for the purpose of these rules 
In view of those words in rule 572 it was unnecessary for the rule making authority to prescribe in rule 281A the consequences of the failure on the part of the State Gov ernment to implement the mandate of rule 281 A
Hence in our opinion the Central Government s decision that the applications made by the appellant the 1st respondent and others for mining lease should be deemed to have been refused on March 1 1958 is correct
Therefore the High Court was wrong in quashing the order of the Central Government on that ground
The High Court was also wrong in opining that in view of the representations made by the learned Government Pleader before Bhimasankaran J on August 25 1959 in Writ Petition No 1237 of 1957 the State Government is estopped from con 165 tending that the application made by the 1st respondent on September 15 1953 must be deemed to have been refused
There can be no estoppel against a statute
Rule 281 A and rule 57 2 are statutory rules
They bind the Government as much as they bind others
The requirement of those rules cannot be waived by the State Governments
Therefore the fact that the learned Government Pleader represented to the Court that the petition filed by the 1st respondent on September 15 1953 was still pending disposal cannot change the legal position nor could it confer on the State Government any power to act in contravention of those rules
Yet another ground relied on by the High Court is that in view of the writ issued by Basi Reddy J in Writ Petition No 888 of 1957 the State Government was bound to consider the application of the 1st respondent and therefore the decision of the State Government taken in obedience to the order of the High Court could not have been set aside the Central Government
It is true that as far as the State Government is concerned the writ issued was binding whether the decision rendered by the court was correct in law or not but then that decision will not bind either the appellant herein or the Central Government who were not parties to that writ petition
It is not a judgment in rem
In obedience to the writ issued by the court of the State Government did consider the application of the 1st respondent
It granted him the lease asked for by him
Therefore the State Government has complied with the direction issued to it by the High Court
The Central Government had been constituted as the revisional authority under rule 57
That authority is a quasi judicial body created by statutory rules
It is bound by law to discharge the duties imposed on it by rule 57
Therefore it had to obey the mandate of rule 57
In so doing it cannot be said that it had infringed the mandamus issued by the High Court in writ petition No 888 of 1957 to which as pointed out before the appellant was not a party and the order made in which could not be binding either on the Central Government or the appellant
For the reasons mentioned above we allow Civil Appeal No 2121 of 1969 and set aside the order of the High Court and dismiss the writ petition No 464 of 1965 but in the circum stances of the case we make no order as to costs in these appeals
ORDER In accordance with the opinion of the majority Civil Appeal No 2121 of 1969 is allowed and Civil Appeal No 2122 of 1969 is dismissed
No order as to costs in these appeals


Summary:
In September 1953 the first respondent applied for a mining lease for over 900 acres in the then Hyderabad State
He was granted a lease of about 57 acres in January 1954 by an order of the State Government which was silent as regards the other areas included in his application
While the respondent kept pressing  for a lease of the remaining areas the State Government began to grant some of these areas to other persons including the appellant
Meanwhile on December 8 1955 the respondent moved the Central Government under Rule 57 of the Mineral Concession Rules 1949 seeking a direction to the State to grant to him the lease of the areas sought by him and to stop granting further areas to other applicants
This review petition was dismissed on the basis that the order of the State Government granting only 57 acres by implication amounted to a rejection of the respondent s claim for the balance area
On September 15 1956 the Mineral Concession Rules were amended and a new sub rule 281 A was introduced which provided that every application under Rule 27 shall be disposed of within 9 months from the date of its receipt
The amended Rule 57 provided that the failure of the State Government to dispose of an application within the prescribed period would be deemed to be a refusal to grant a lease and that the aggrieved person may within two months apply to the Central Government for a review
A further amendment of Rule 572 provided that any application pending with the State Government an 14th September 1956 and remaining undisposed of on the 24th August 1957 shall be disposed of by the State Government within 6 months from the latter date
Prior to this amendment the respondent had filed another review petition before the Central Government and on September 26 1957 that petition was dismissed by the Government as being premature this was on the basis that the respondent s original application was pending on 31st August 1957 and the period of 6 months from that date as prescribed by the amended Rule 572 had not yet expired
The respondent then moved the High Court by a petition under Article 226
making the State Government alone party and seeking a writ of mandamus to the Government to dispose of his application of September 1953 expeditiously
The High Court allowed this petition and did not accept the contention on behalf of the State Government that in view of section 572 the respondent s application must be L11Sup CI11 154 deemed to have been rejected
it held that section 572 was intended to be for the benefit of the applicant and did not relieve the State Government from performing the statutory function imposed on it under rule 17 of granting or refusing the licence
During the pendency of the first petition the respondent had also filed a second petition seeking the same relief and this was disposed of in August 1959 on the basis of a statement by the Government Advocate that the State Government was prepared to dispose of the first respondent s application on the merits without relying on rule 572
By an order on May 27 1961 the State Government granted on
mining lease to the respondent all the areas for which he had applied in September 1953 excluding those areas which had been earlier leased to others
 However
the Central Government allowed a review petition under Rule 57 filed by the appellant and set aside the order on the ground that the application made by the appellant the first respondent as well as others which were pending before the State Government should be deemed to have been rejected on 1st March 1958 in view of rule 572
The 1st respondent then challenged this order by a writ petition in the High Court which was allowed and the order was quashed
The court held that rule 572 was enacted only for the benefit of the applicants and did not take away the power of the State Government to dispose of applications even after expiry of the prescribed period that in view of the Government Advocate s concession the State Government Was stopped from contending that the respondent s application of September 1953 must be deemed to have been refused and furthermore that in view of the writ of mandamus issued in the first writ petition the State Government was bound to consider the application of the 1st respondent and the decision of the State Government taken in obedience to the order of the High Court could not have been set aside by the Central Government
HELD  Per Hedge and Grover JJ The appeal must be allowed By the Court 1 Reading rule 28 1 A and rule 57 2 together there is no doubt that after the period prescribed the State Government is incompetent to deal with the applications  pending before it
The High Court was therefore wrong in holding that even if an application stands rejected for failure to pass an order within the time prescribed the State Government has power to issue a licence
164 C Dey Gupta  Company vs State of Bihar AIR 1961 Pat 487 referred to
2 There can be no estoppel against a statute
Rule 281 A and rule 572 are statutory rules
They bind the Government as much as they bind others
The requirement of those rules cannot be waived by the State Governments
Therefore the fact that the Government Advocate represented to the Court that the 1st respondent s application was still pending could not change the legal position nor could it confer on the State Government any power to act in contravention of those rules
165 A B 3Per Hegde and Grover JJ As far as the State Government was concerned the writ issued was binding whether the decision rendered by the Court was correct in law or not but that decision could not bind the appellant or the Central Government who were not parties to that writ petition
It was not a judgment in rem
In obedience to the writ issued by the court the State Government did consider the 155 application of the 1st respondent and granted him the lease asked for by him
The Central Government had been constituted as the revisional authority under rule 57
That authority is a quasi judicial body created by statutory rules
It is bound by law to discharge the duties imposed on it by rule 57
Therefore it had to obey the mandate of rule 57
In so doing it cannot be said that it had infringed the mandamus issued by the High Court
165 D F Per Shah J dissenting  The appeal must be dismissed Granting that the High Court erroneously issued a writ of mandamus directing the State Government to perform its functions it was not open to the Central Government in effect to exercise appellate authority over the judgment of the High Court
To accede to the contention that the executive has the power when exercising quasi judicial functions to sit in appeal over the decision of the High Court is to destroy the scheme of division of powers under our Constitution
There was no distinction between the effect of an order made by the High Court and carried out by the State and an order made by the High Court and confirmed in appeal by this Court and carried out by the State
Article 141 of the Constitution has no bearing on that question
If this Court decided a question of law or of fact or a mixed question of law and fact arising in an appeal against an order passed by the High Court in a writ petition against the action of the State Government granting or refusing to grant a licence it would not be open to the Central Government hearing a review petition against the order of the State Government in compliance with the order of this Court to set aside the order so as to upset the order of this Court
156 H It is well settled that a person who has not been made a party to a proceeding may still appeal with leave of the Appellate Court provided he might have properly been made a party to the proceeding
The appellant could undoubtedly have been made a party to the petition before the High Court
He could therefore challenge the correctness of the order and no objection could be raised against the granting of leave to him to appeal on the ground that he was not a party to the writ petition
C Re
B an Infant CA The Province of Bombay vs Western India Automobile Association ILR  Ponnalagu vs State of Madras ILR 1953 Mad 808 Pullayya vs Nagbhushanain ILR FB referred to