Case: C. Buchivenkata Rao Vs. Union Of India &amp; Ors

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 N. Setharamaiah v. Kotaiah Naidu, (1971) 1 SCR 153 = (AIR 1970 SC 1354 ), 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.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 p. 568 = (AIR 1961 SC 928 ); S. L. Aggarwal v. General Manager, Hindustan Steel Ltd. (1970) 3 SCR 363 at p. 365 = (AIR 1970 SC 1150 ); Chitra Ghost v. Union of India, (1970) 1 SCR 413 at 420 = (AIR 1970 SC 35 ).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 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 order of the Registrar of this Court, subject to such objection 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 provisions 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 provisions had 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 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.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 = (AIR 1970 SC 759 ), which related to a right to obtain transfer of a permit for a motor vehicle under Section 61, sub-s (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 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.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 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 cloths Venkatagiris 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 authority 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 acompanied 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 free 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 indication 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 Commr. U.P. AIR 1963 SC 1417  , 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 supplied in the application correspondent with the contents of the lease after the alleged lacuna had been filled up, the grant of the lease of Venkatagiri was valid.9. 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 Courts 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 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 unable to hold that the order of the Central Government was vitiated on the third ground urged on behalf ofwas, that this Court had pointed out in N. Setharamaiah v. Kotaiah Naidu, (1971) 1 SCR 153   = (AIR 1970 SC 1354  ), 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.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 p. 568 = (AIR 1961 SC 928  ); S. L. Aggarwal v. General Manager, Hindustan Steel Ltd. (1970) 3 SCR 363     at p. 365 = (AIR 1970 SC 1150  ); Chitra Ghost v. Union of India, (1970) 1 SCR 413     at 420 = (AIR 1970 SC 35  ).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 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 order of the Registrar of this Court, subject to such objection 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 provisions 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 provisions had 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 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.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   = (AIR 1970 SC 759  ), which related to a right to obtain transfer of a permit for a motor vehicle under Section 61, sub-s (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 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.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 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 cloths Venkatagiris 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.