SALIGRAM KHIRWALversusUNION OF INDIA

A                           SALIGRAM KHIRWAL
                                       v.
                              UNION OF INDIA

                             SEPTEMBER 9, 2003

B                  [R.C. LAHOTI AND ASHOK BHAN, JJ.]

         Mines and Minerals (Regulation and Development) Act, I957:

         Ss. I I (2) and (3)-Applications for mining /ease-Death ofone of the
C applicants after lease was granted in favour of another-Claim of legal
  heirs-The unsuccessful applicant filing writ petition before High Court
  after her revision against grant of lease in favour of another person was
  dismissed by Government-Death of applicant during pendency of writ
  petition-High Court substituting legal heirs allowing writ petition and
D directing the Government to consider application afresh-Held, the deceased
  applicant in her writ petition was merely canvassing and claiming
  consideration afresh of her application for the grant-Her entitlement to
  the grant of mining lease was to be adjudicated upon on the basis of her
  own qualification and entitlement-The claim of legal heirs shall have to
  be adjudicated upon on the basis of their own qualifications and their own
E entitlement-On the death of the applicant, all that survived to the legal
  heirs was to make an application afresh and have the same considered in
  accordance with /aw-On/acts, r.25-A is not applicable-Besides, lease
  was granted in favour of the successful applicant/or 20 years and he has
  operated the mine/or about 23 years-It will be a travesty ofjustice to
F dislodge the successful applicant from the mine after a period of 23 years
  solely for the purpose of considering an application by a competitor-
  However, if any prayer for renewal of lease is made hereafter, it shall be
  treated as an application for fresh grant and the legal heirs ofthe deceased
  and any other person shall be entitled to make application-Mineral
G Concession Rules, 1960-R.25-A.
         C. Buchivenkata Rao (dead) by his legal representatives v. Union of
    India and Ors., [1972) 3 SCR 671, relied on.

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5689 of
H   1994.
                               522
                    SALIGRAMKHIRWALv. U.0.1.                             523

     From the Judgment and Order dated 23.2.93 of the Orissa High Court         A
in O.J.C. No. 1269 of 1982.

     Jayant Das, Ajit Pudussery and S. Mohanty for the Appellant

    Janaranjan Das, Gaurang Biswal, Swetaketu Mishra, Ms. Moushmi
Gahlot and Ms. Kirti Mishra for the Respondents.                                B
     The following Order of the Court was delivered :

      Late Dr. Sarojini Pradhan, whose heirs are impleaded as respondent
Nos. 3 to 8 herein (collectively called hereafter as 'private respondents',     C
for the sake of convenience) was holding a mining lease over an area of
163.4723 hectares in village Banarai for extraction of lime stone and
dolomite. Late Dr. Sarojini Pradhan committed breach of terms and
conditions of the mining lease in her favour consequent whereupon the
State Government determined her lease and called for fresh applications
vide a notification dated 3rd December, 1977. The termination of the            D
mining lease held by late Dr. Sarojini Pradhan is now only a matter of past
history inasmuch as that termination has achieved a finality and is not in
dispute in the present proceedings.

      Pursuant to the notification dated 3rd December, 1977, nine               E
applications came to be submitted for the grant of mining lease in terms
of sub-Sections (2) and (3) of Section 11 of the Mines and Minerals
(Regulation and Development) Act, 1957. The appellant before us and late
Dr. Sarojini Pradhan were also amongst the applicants. Having scrutinised
all the applications, the Director of Mines, on 3 !st January, 1979,            F
recommended the mining lease being granted in favour of the appellant.
On 4th December, 1979, the State Government passed an order granting
the mining lease in favour of the appellant. The terms and conditions
proposed by the State Government were accepted by the appellant on 3rd
January, 1980. On I Ith January, 1980, the mining lease was executed and
the formal grant order in favour of the appellant was issued by the State       G
Government on 16th January, 1980. Late Dr. Sarojini Pradhan preferred
a Revision to the Central Government against the grant in favour of the
appellant. But the Revision was dismissed by the Central Government on
29th May, 1982. Some time in the year 1982, Dr. Sarojini Pradhan filed
a writ petition in the High Court of Orissa laying challenge to the rejection   H
    524                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A of her application and to the grant in favour of the appellant. During the
  pendency of the writ petition, on I 0th September, 1987, Dr. Sarojini
  Pradhan expired. Her legal representatives, the private respondents, prayed
  for substitution which pray~r was allowed by the High Court, leaving it
  open for consideration at the time of final decision whether any right to
B sue survived to the private respondents or not. The matter was finally heard
  on 15th December, 1992 and disposed of by the High Court by its decision
  dated 23rd February, 1993. The writ petition filed by late Dr. Sarojini
  Pradhan and prosecuted by the private respondents was allowed, the grant
  in favour of the appellant was set aside and the State Government was
  directed to consider the applications afresh. Feeling aggrieved by the
C judgment of the High Court, the appellant has filed this appeal by special
  leave.

        The singular submission made by the learned counsel for the appellant
  is that the right to sue did not survive to the private respondents and,
D therefore, the High Court has committed a serious error of law in hearing
  the writ petition on merits and then allowing the same. It is submitted by
  the learned counsel that consequent upon the death of Dr. Sarojini Pradhan,
  the writ petition ought to have been dismissed as having bated as there was
  no occasion for allowing substitution in the facts and circumstances of the
  case. The learned counsel for the private respondents, on the other hand,
E submitted that the right to sue did survive and it is the status and entitlement
  of the parties by reference to the year 1978, that is the year in which several
  applications were filed before the State Government, that the claims of the
  parties should have been adjudicated upon as has been done by the High
  Court.
F
          Having heard the learned counsel for the parties, we are of the opinion
    that the appeal deserves to be allowed and the decision of the High Court
    deserves to be set aside.

          Reference has been made by the learned counsel for the private
G respondents to the relevant provisions, tracing the history of legislative
  changes, in support of his submission that the law as enacted by Rule 25A
  of the Mineral Concession Rules, 1960, introduced by way of amendment
  with effect from Ist April, 1991, is only clarificatory of the position of law
  which should be deemed to have been always the same as was clarified
H by the amendment. Under the Mineral Concession Rules, 1949, Rule 28(3)
                    SALJGRAM KHIRWAL v. U.O.I.                             525
provided that in the event of death of an applicant before grant of mining         A
lease, the fee paid under sub-Rule (I) shall be refunded to his legal
representatives. The learned counsel for the priviate respondents submitted
that there was a specific provision wherefrom it could be spelled out that
the death of an applicant entailed implicit rejection of the application
leading to refund of fee to the legal representatives. The Mineral Concession      B
Rules, 1949 were repealed by the Mineral Concession Rules, 1960 which
contained no provision corresponding to Rule 28(3) of the 1949 Rules.
However, with effect from 1st April, 1991, Rule 25A was introduced in
the body of the Mineral Concession Rules, 1960 which provides as
under :

         "25A. Status of the grant on the death of applicant for mining
                                                                                   c
         lease.- (I) Where an applicant for grant or renewal of mining
         lease dies before the order granting him a mining lease or its
         renewal is passed, the application for the grant or renewal of a
         rr.ining lease shall be deemed to have been made by his legal
         representative.                                                           D
         (2) In the case of an applicant in respect of whom an order
         granting or renewing a mining lease is passed, but who dies before
         the deed referred to in sub-rule ( 1) of rule 31 is executed, the order
         shall be deemed to have been passed in the name of the legal
         representative of the deceased."                                          E
     The learned counsel submitted that this amendment is clarificatory in
nature and merely recognises by way of restatement the law as had always
prevailed. However, we find it difficult to agree with the learned counsel.

     Firstly, Rule 25A, on its plain reading, does not have any applicability      F
to the situation emerging from the facts of the present case. The rule
contemplates the death ofan applicant for grant or renewal of mining lease
expiring before the order granting him a mining lease or its renewal is
passed (Emphasis supplied). in the present case, the death has been of an
applicant in whose favour any order for the grant oflease was never passed.        G
The legal position shall have to be determined de hors the Rule 25A.

     The position of law came to be examined by this Court in
C. Buchivenkata Rao (dead) by his legal representatives v. The Union of
India & Ors., [1972] 3 SCR 671. It was a case o: mining lease. Their
Lordships stated the law in the following words.                        H
    526                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A            "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
B
             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
c            desire to apply for the grant of a lease."

          Their Lordships clearly held that once the applicant has died, the legal
    representatives of the deceased applicant shall have to file a fresh
    application setting out their own qualifications whereon would be determined
D   their entitlement to the grant. It was submitted before their Lordships that
    the legal heirs of the deceased applicant should be assumed to be
    possessing the same rights which the deceased may have had to obtain the
    lease which rights would survive to the legal heirs and vest in them. Their
    Lordships specifically turned down the plea and refused to accept the
    correctness of the assumption sought to be canvassed.
E
           The learned counsel for the private respondents tried to distinguish
    the law laid down in the case ofC. Buchivenkata Rao (supra) by submitting
    that the case deals with 1949 Rules and cannot be pressed into service for
    interpreting the I 960 Rules. Such a distinction cannot be drawn. The
p   statement of law made by their Lordships is not confined to I 949 Rules.
    It states the law as would prevail ifthere is no provision in the Rules either
    way.

           We also find it difficult to agree with the submission that the 1991
    amendment in the Rules is merely clarificatory and the provisions contained
G   in Rule 25A should be read as if declaring the law as it prevailed even in
    the absence of the rule. Firstly, there is nothing in the language of Rule
    25A to support such a submission. Secondly, the amendment introduced
    on 1st April, 1991 is not made retrospective in operation. At the cap of
    it all, as we have already said hereinabove, Rule 25A has no applicability
H   to the facts of the case at hand.
                     SALIGRAM KHIRWAL v. U.O.L                            527
      Late Dr. Sarojini Pradhan in the writ petition filed before the High        A
Court was merely canvassing and claiming consideration afresh of her
application for the grant. There was no vested right accrued to her for the
grant. The entitlement of late Dr. Sarojini Pradhan to the grant of mining
lease was to be adjudicated upon on the basis of her own qualifications
and entitlement. The claim of the legal heirs shall have to be adjudicated        B
upon on the basis of their own qualifications and their own entitlement.
Needless to say, on the death of Dr. Sarojini Pradhan, all that survived to
the legal heirs was to make an application afresh and have the same
considered in accordance with law.

      There is an additional fact which cannot be overlooked. The grant in        C
favour of the appellant was made in the year 1980 by way of a mining lease
for twenty years. That period has expired during the pendency of these
proceedings. In terms of the mining lease, the appellant is entitled to one
renewal. The learned counsel for the parties are unable to state at the Bar,
for want of instructions, whether the appellant has applied for any renewal       D
and, if so, with what result. Be that as it may, the appellant has operated
the mine for a period of about 23 years by this time and substantial
investment must have been made by the appellant for operating the mine.
It will be a traversity ofjustice to dislodge the appellant from the mine after
a period of 23 years solely for the purpose of considering an application         E
by a competitor which application may or may not be allowed at the end.
In the facts and circumstances of the case, in our opinion, it would meet
the ends of justice if it is directed that any prayer for renewal of lease made
hereinafter shall be treated as an application for a fresh grant and therein
the private respondents or any other person shall be entitled to make an
application for grant in his favour and to oppose the grant in favour of the      F
appellant herein.

      The appeal is allowed. The impugned judgment of the High Court is
set aside, subject to the observation made hereinabove.
                                                                                  G
       No order as to costs.

R.P.                                                         Appeal allowed.