Case ID: 3704

Judgment:
Appeal No. 792 of 1975. (Appeal by special heave from the judgment and order dated the 12th March	 1974 of the Orissa High Court in O.J.C. No. 336 of 1972) B. Sen	 B. V. Desai and R.H. Dhebar	 for the appellant. Mrs. section Bhandare. M.S.Narasimhan	 A.K. Mathur and A. K. Sharma	 for respondent No. 1. S.K. Mehta	 for Girish Chandra	 for respondent No. 2. Gobind Das	 B. Parthasarthi for respondent No. 3. 704 The Judgment of the Court was delivered by BEG	 J. The appellant before us applied on 14th October	 1961	 for a prospecting licence for an area of 833.53 acres in the requisite form 'B '	 under rule 9(1) of the Mineral Concessions Rules	 1960	 made under Section 13 of the (herein after referred to as the Act). The application was filled in correctly. But a sum of Rs. 24/ only	 instead of Rs. 32/ 	 accompanied the application. It appears that 'the appellant realised the mistake in calculating later and paid the deficit of Rs. 8/ on 28th December	 1961. By way of abundant caution	 he made a fresh application also on 26th February	 1962. In the meantime	 the respondent No. 1 had applied on 2nd November	 1961	 for a prospecting licence for 748.16 acres out of which 272.40 acres were common with those for which the appellant had already applied. No orders were passed disposing of the application of the appellant within 90 days of the making of it. The appel lant treated this omission to be tantamount to refusal of his application	 as provided by rule 11 (1 )	 and preferred a revision application before the Central Government under Section 30 of the Act. On 20th October	 1964	 the Central Government asked the State Government to consider the appli cation of the appellant dated 14th October	 1961	 within the next nine months. On 13th January	 1965	 the State Govern ment offered the appellant a prospecting licence for an area of 365 acres. On 12th February	 1965	 the appellant moved the Central Government for revision of the order making the offer. On 19th March	 1965	 the Central Government in formed the appellant that his application was premature since neither nine months had elapsed nor final orders had been passed by the State Government. On 9th May	 1965	 the Central Government actually rejected the revision applica tion of the appellant presumably for reasons found in the above mentioned communication. On 22nd June	 1965	 the State Government directed the grant of a prospecting licence to respondent No. 1 for an area including 272.40 acres	 in dispute. On 7th July	 1965	 the State Government again offered the appellant the grant of a licence for 3.65 acres. On 2nd January	 1967	 the High Court dismissed the Writ Petition of the appellant filed against the abovementioned order of the Central Government dated 9th May	 1965	 reject ing his revision application. On 2nd April	 1970	 the State Government again offered the appellant a prospecting licence for an area of 365 acres. On 30th April	 1970	 a prospecting licence was actually executed in favour of respondent No. 1 for an area which included the disputed 272.40 acres. The appellant 's objections before the Collec tor were rejected. On 27th May	 1970	 the appellant again filed a revision application before the; Central Government against the offer dated 2nd April	 1970	 for the third time. by the State Government of the smaller area of 365 acres. On 23rd November	 1970. the respondent No. 1	 actually applied for a mining lease. but	 on 12th April	 1973	 the Central Government accepted the appellant 's objec tion relating to 272.40 acres. Hence. the respondent No. 1 went to the High Court under Article 226 of the Constitu tion. The High Court quashed the order of the Central Government by its order dated 12th March	 1974	 on the ground that the original application of the 705 appellant	 dated 14th October	 1961	 not having been accom panied by the correct fee	 was no application at all in the eye of law. Hence on the view taken by the High Court	 the appellant	 not having complied with mandatory provisions	 had not filed any application which could be accepted by the State Government. The High Court took the view that the Central Government 's order dated 12th April	 1973	 suffers from a patent error. The appellant having obtained special leave to appeal	 the case is now before us. It has to be remembered that the special jurisdiction of the High Court under Article 226 had been invoked by the respondent. The High Court had before it a very detailed statement of reasons for the order of the Central Government in exercise of its powers under Section 30 of the Act. We have also been taken through these reasons contained in the letter dated 12th April	 1973	 sent to the appellant. It shows that both the parties between whom the dispute relat ing to 272.4.0 acres of land for grant of a prospecting licence had gone before the Central Government several times	 and the matter was not finally decided by the State Government. Even though the State Government may have	 according to its own erroneous view disabled itself from granting a prospecting licence to the respondent in respect of disputed 272.40 acres	 due to its decision to grant this area to the respondent	 yet	 as the letter from the Central Government points out	 the prospecting licence of the re spondent who was impleaded in the revision proceedings before the Central Government and duly heard on all ques tions	 was due to expire on 30th April	 1972. After con sidering the legal position and all the facts and equities of the case	 the Central Government correctly held	 on the question law before it	 that the appellants application before the State Government was a valid one as it had been entertained without objection even if it was not accompa nied	 when flied	 by the correct amount of fee. In a communication sent	 the Central Government stated its rea sons to the appellant as follows: "The question arises whether you were indeed or can indeed be deemed to be the prior application for the area. It has been seen that your application dated 14.10.1961 was not perfect in the sense that fee paid into the treasury fell short of Rs. 8/ . However	 the State Government itself by giving a chance to you to rectify this mistake ac knowledged implicity that it had in its hands an application otherwise valid. Therefore	 the appropriate date which should be taken into consideration is 14.10.61 and not 28 12 1961	 as interpreted by the State Gov ernment. The State Government 's order permit ting you to make good the deficit in the amount of fees originally paid into the treas ury has nothing to do with the submission of the application which was done on 14.10.61. The Stale Government could	 if it so wished	 have refused the application dated 14.10.61 as being imperfect. But	 since it did not do so and permitted the application to remain under consideration	 it recognised your right as an applicant. Therefore	 the State Govern 706 ment cannot argue that impleaded party Phul chand Agarwal by submitting his application on 2.11.61 becomes a prior applicant". In other words	 the Central Government had	 correctly in our opinion	 relied upon an estoppel against the State Govern ment. After giving the above mentioned reasons	 the Cen tral Government considered it fair that the appellant should be. granted a prospective licence in respect of 272.40 acres also over and above the 365 acres already granted to him by the State Government. The operative part of the order passed by the Central Government is: "In the circumstances of the case	 the Central Government	 in exercise of their revisional powers under Rule 55 of of the Mineral Concessions Rules	 1960	 and of all other powers enabling in this behalf	 hereby set aside the order of the State Government contained in their letter No. II(E)M. 82/70 3015MG	 dated 2.4.1970	 and further direct the State Government to grant the overlapping of 272.40 acres to you over and above the area of 365 acres already granted to you." The only question which arises beforeus is whether the order of the Central Government suffers from an error appar ent upon the face of the record so as to furnish a ground for interference by the High Court on the purest of pure technicalities	 which	 as had been pointed out in the letter sent from the Central Government to the appellant	 had ceased to matter. The deficiency in the fees having been duly accepted on behalf of the State Government	 it was bound to proceed on the assumption that there was a proper application before it valid from the date of filing it. It was precluded	 by its own dealings	 from denying the validity of the application. It is not very becoming for governmental authorities	 when duties laid down by statutory rules. have not been performed by them	 to take shelter behind such technicality for denying a citizen 's rights to have his application considered and decided. Rule 11 (1) of the Rules framed was a recognition of that right so that an applicant for a licence under the rules could approach the Central Government in case the State Government did not pass the required orders within a reasonable time. The Central! Government had passed a very fair order after considering the matters ' before it. We have been taken very laboriously through all the relevant provisions of the Act and the Rules to convince us that the High Court 's view was correct that there was an error apparent upon the face of the record in the view of the Central Government which the High Court had corrected in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. We are unable to detect such on error on the part of the Central Government. On the other hand	 we find that the High Court itself committed an error	 which seems to us to be very apparent	 in holding that an applica tion which had only to be accompanied by the fee would be considered validly filed on the date on which	 707 it was made only if proper fee had been tendered with it when it was filed. A right and reasonable procedure looks to substance rather than form of a transaction in order to determine its nature. The statute and the rules made there under would have said so if the application itself was to be deemed to be void ab initio for non compliance with a par ticular technical requirement if that was the intention behind them. All that we have here is the word 'shall ' used in Rule 9(2). But	 this Court has repeatedly held that the use of the word 'shall ' in imposing a duty is not conclusive on the question whether the duty imposed is mandatory or directory. Moreover	 that question was only incidentally involved here. It is not the breach of every mandatory duty in performing a prescribed act that could make an action total ly ineffective or void ab initio. The filing of the appli cation is one thing and completion of some annexed duty	 which is legally separable	 is another unless a statute or a rule provides otherwise. Rule 9 reads: "9 (2) Every such application shall be accom panied by (a) a fee calculated in accordance with the provisions of Schedule II; and (b) an income tax clearance certificate in Form C the from Income tax Officer concerned; and (c) a certificate of approval in Form A or if the certificate of approval has expired	 a copy of application made to the State Govern ment for its renewal". ' It is not disputed that all the requirements of the rule	 except that a properly calculated fee should have accompanied the application	 were fulfilled. Apparently	 Rule 10 was also complied with and the application was 	duly received and acknowledged. Rule 10 reads as follows: "10. Acknowledgement of application . (1) Where an application for the grant or renewal of a prospecting licence is delivered personally	 its receipt shall be acknowledged forthwith. (2) Where such application is received by registered post	 its receipt shall be acknowl edged on the same day. (3) In any other case	 the receipt of such application shall be acknowledged within three days of the receipt. (4) The receipt of every such application shall be acknowledged in Form D. The next rule provides: "11. Disposal 0f application for the grant and renewal 0f prospecting licence. (1) An application for the grant of a prospecting licence shall be disposed of within nine months 11 112SCI/77 708 from the date of its receipt and	 if it is not disposed of within that period	 it shall be deemed to have been refused. (2) An application for the grant or renewal of a prospecting licence shall be made at least ninety days be(ore the expiry of the prospect ing licence and shall be disposed of before the expiry of the licence and if the applica tion is not so disposed of within that period	 it shall be deemed to have been refused. (3) The State Government may	 for reasons to be recorded in writing and communicated to the applicant	 at the time of renewal	 reduce the area applied for." Repeated offers of the State Government to the appellant show that it acknowledged the pendency of an application before it so that it offered a reduced area to him. Again	 the directions of the Central Government	 asking the State Government to consider the application and giving nine months for it implied that there was an application to consider before the State Government. The respondent did not question the validity of the Central Government 's order of 20.10.1964. It seems futile to urge now that there was no application at all of the appellant for the State Gov ernment to consider. Again	 rule 13 provides: "13. Refund of fee . (1) 'Where an application for the grant of a prospecting licence is refused or deemed to have been refused under these rules	 the fee paid by the applicant shall be refunded to the applicant. (2) Where an applicant for the grant of a prospecting licence dies before the order granting him a prospecting licence is passed	 his application for the grant of a prospecting licence shall be deemed to have been rejected and the fee paid by him shall be refunded to his legal representative. (3) In the case of an applicant in 	re spect of whom an order granting a prospecting licence is passed but who dies before the deed referred to in sub rule (1) of rule 15 is executed	 the order shall be deemed to have been revoked on occurrence of the death and the fee paid shall be refunded to the legal representative of the deceased". This rule also makes it clear that there is a distinction between an application and the fee which has to accompany it. The fee can be refunded	 but	 the application made remains. There is no rule whatsoever which rays that failure to submit the correct fee at the time of the filing of the application will make the 709 application void or invalid. Section 19 of the Act	 howev er	 says clearly : "19. ' Any prospecting licence or mining lease granted	 renewed or acquired in contra vention of the provisions of this Act or any rules or orders made thereunder shall be void and of no effect". Hence	 it is clear that the Act itself provides what is void and ineffective where that is the intention. It would have been provided at least by the Rules that an application not accompanied by the correct fee is void if that had been the intention behind them. Section 19 attaches voidness only to a grant made without due compliance with all rules. It is nowhere said that the act of making an application will be similarly void for a breach of rules. Another submission made before us is that the grant of a prospecting licence in favour of Phulchand	 not having been set aside by the Central Government	 the High Court had rightly interfered. In view of the provisions of Section 19 of the Act the prospecting licence in favour of respondent No. 1 was itself void to the extent of an area of 272.40 acres for which a licence had already been properly applied for by the appellant. Unless the appellant 's application had been properly refused	 for a valid reason	 he could not be denied the benefit of section 11 (2) of the Act. Sec tion 11 (2) reads as follows: "11(2) Subject to the provisions of sub section where two or more persons have applied for a prospecting licence or a mining lease in respect of the same land	 the appli cant whose application was received earlier shall have a preferential right for the grant of the licence or lease	 as the case may be	 over an applicant whose application was re ceived later. " Reliance is placed on behalf of the respondent on the conditions for the grant of the licence contained in Rule 14 which does not govern the conditions for filing an applica tion at all. It may be that a licence cannot be granted without making good the deficiency in fee which should accompany the application	 but that does not mean that a bona fide application accompanied by an incorrectly calcu lated fee or a fee which is deficient by over sight	 could not be made at all	 or	 if made	 must be treated as void or of no effect whatsoever. On this question	 the view taken by the Central Government was	 in our opinion	 correct	 just	 and proper. On such a view	 it is not necessary to discuss any of the cases on the kind of error which could be corrected by the High Court as there was no error of any kind in the Central Government 's order for the High Court to be able to correct it. On the other hand the error	 which we consider necessary to correct	 is in the High Court 's order. Consequently	 we set aside the judgment and order of the High Court and restore those of the Central Government. The parties will bear their own costs. S.R. Appeal allowed.

Summary:
The appellant applied on 14 10 1961 for a prospecting licence for an area of 833.53 acres under rule 9(1) of the Mineral Concessions Rules	 1960. The application was in order	 in all respects	 except to the extent that instead of Rs. 32/ 	 the fees payable	 a sum of Rs. 24/ only was paid. However	 on realisation of this mistake	 he paid the deficit of Rs. 8/ on 28 12 1961 and	 by way of abundant caution	 made a fresh application on_26 2 1962. Respondent No. 1 had applied on 2 11 1961 for a prospecting licence for 748.16 acres out of which 272.40 acres were common with those for which the appellant had already applied. Since no orders were passed disposing of the applications of the appellant within 90 days of the making of it	 the appellant filed a revision before the Central Government treating this omis sion on the part of the State to be tentamount to refusal of his application as provided by rule 11(1). On 20 10~1964	 the Central Government asked the State Government to con sider the application of the appellant dated 14 10 1961 within the next 9 months. The State Government	 instead of considering the application dated 14 10 1961 as directed	 offered thrice	 on 30 1 1965	 7 7 1965 and 2 4 1970	 a prospecting licence for an area of 365 acres which was not accepted by him and his attempts by way of revision against these orders to the Central Government and a writ petition in the High Court failed. The State Government	 however	 on 22 6 1965	 directed the grant of a prospecting licence to respondent No. 1 for an area including 272.40 acres in dispute which was actually executed in his favour on 30 4 1970. The appellant 's objection before the Collector against this was rejected. On 12 4 1973	 the Central Government accepted the objection relating to 272.40 acres and opined that his application dated 14 10 1961 was earlier in point of lime within the meaning of section 11(2) of the Mines & Minerals (Regulation and Development) Act	 1957. Against this order the respondent No. 1 went to the High Court under article 226 of the Constitution. The High Court quashed the orders of the Central Government	 by its order dated 12 3 1974 and held the application of the appellant dated 14 10 1961 not having been accompanied by the correct fee was no application at all in the eye of law. Accepting the appeal by special leave	 the Court	 HELD: (1) After considering legal position and all the facts and equities of the case	 the Central Government correctly held	 on the question of law before it	 that the appellant 's application before the State Government was a valid one as it had been entertained without objection even if it was not accompanied	 when filed	 by the correct amount of fee. [706 A	 E] (2) The Central Government had correctly relied upon an estoppel against the State Government. The deficiency in the fees having been duly accepted on behalf of the State Government	 it was bound to proceed on the assumption that there was a proper application before it valid from the date of filing it. The State Government was precluded by its own deeds from denying the validity of the application. [706 A	 E] 703 (3) There is no patent error upon the face of the record warranting a correction in exercise of its extraordinary jurisdiction under article 226 of the Constitution by the High Court in the instant case. On the other hand	 High Court itself committed an apparent error in holding that an appli cation which has only to be accompanied by the fee would be considered validly filed on the date on which it was filed only if proper fees has been tendered with it when it was filed. [706 G H] (4) It is not very becoming for Governmental authorities when duties laid down by statutory rules having been per formed by them	 to take shelter behind such technicalities for denying a citizen 's right to have his application con sidered and decided. Rule 11(1) of the Rules framed was a recognition of that right so that an applicant for a licence under the Rules could approach the Central Government in case the State Government did not pass the required orders within a reasonable time. [706 E F] (5) A right and reasonable procedure looks to substance rather than form of acts or transactions in order to deter mine their nature. There is no rule whatsoever which says that failure to submit the correct fee at the time of the filing of the application will make the application void or invalid. Rule 13 makes it clear	 by differentiating between an application and the fee by which it has to be accompa nied. The fee can be refunded but the application made remains. The filing of the application is one thing and compliance of some annexed duty	 which is legally separable	 is another	 unless a statute or a rule provides otherwise. [707 A	 C	 708 H 709 C] (6) It is clear from section 19 that the Act itself provides what is void and ineffective where that is the intention. Section 19 attaches a voidness only to a grant made without due compliance. with all rules. It is nowhere said that the Act of making an application will be similarly void for breach of rules. [709 B C] (7) In the instant case	 in view of the provisions of section 19 of the Act	 a prospecting licence in favour of respond ent No. 1 was itself void to the extent of an area of 272.40 acres for which	 a licence had already been properly applied for by the appellant. Unless the applicant 's application had been properly refused for a valid reason	 he could not be denied the benefit of section 11(2) of the Act. It may be that a licence cannot be granted without making good the deficiency in fee which should accompany the application	 but that does nor mean that a bona fide application accompa nied by an incorrectly calculated fee or a fee which is deficient by oversight could not be made at all or if made must be treated as void or of no effect whatsoever. [709 C G] (8) The use of the word "shall" in imposing a duty is not conclusive on the question whether the duty imposed is mandatory or directory. It is not the breach of every mandatory duty in performing a prescribed act that could make an action totally ineffective or void ab initio. The meaning of the. word "shall" in Rule 9(2) of the Mineral Concessions Rules	 1960	 was only incidentally involved here. [707 B C]