# [1971] 1 S.C.R. 153

- **Citation:** [1971] 1 S.C.R. 153
- **Court:** Supreme Court of India
- **Decided:** 1970-03-31
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1971-1-s-c-r-153-5029
- **Pages:** 13

## Headnote

Mineral Concession Rules, 1949-Rules 28(l:A). 57(1)-Scope ofl'ailure of the State Government to dispose of applications for grant of
mining lease within the time prescribed by the rules-Whether the State
Government is deemed to have refused the applications.
Review-If Central Government could review
u>tder rule 57(1)
decision of State Government to grant leave pursuant to 111andan1us
issued by High Court.
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, I Q49, 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
\Vas 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 Minera1 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 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 re·
view.
A further amendment of Rule 57(2) provided that any application
pending with the State Government on 14th September, 1956 and remaining undisposed of on the 24th1 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 dismiss·
ed by the Government as "being premature; this was on the basis that the
respondent's original application was pC11ding on 31st August, 1957,
and
the period of 6 months from that date, as prescribed by the amended Rule
57(2) 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 57(2) the respondent's application must be
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[1971] l S.C.R.
deemed to have been rejeC'ted. It held that oection 57(2) 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
1 7 of granting or refusing the licence.
During the pcndency uf the
first petition, the respondent had also filed a second petition seeking the
sD.me relief and this was disposed o~ 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 57 (2).
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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, !953 excludng 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 o'rder on the ground
'that the application made by the appellant, the first respondent, as well
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as others which

## Text

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153
NOOKALA SETHARAMAIAH
v .
KOTAIAH NAIDU & ORS.
March 31, 1970
[J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.J
Mineral Concession Rules, 1949-Rules 28(l:A). 57(1)-Scope ofl'ailure of the State Government to dispose of applications for grant of
mining lease within the time prescribed by the rules-Whether the State
Government is deemed to have refused the applications.
Review-If Central Government could review
u>tder rule 57(1)
decision of State Government to grant leave pursuant to 111andan1us
issued by High Court.
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, I Q49, 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
\Vas 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 Minera1 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 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 re·
view.
A further amendment of Rule 57(2) provided that any application
pending with the State Government on 14th September, 1956 and remaining undisposed of on the 24th1 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 dismiss·
ed by the Government as "being premature; this was on the basis that the
respondent's original application was pC11ding on 31st August, 1957,
and
the period of 6 months from that date, as prescribed by the amended Rule
57(2) 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 57(2) the respondent's application must be
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[1971] l S.C.R.
deemed to have been rejeC'ted. It held that oection 57(2) 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
1 7 of granting or refusing the licence.
During the pcndency uf the
first petition, the respondent had also filed a second petition seeking the
sD.me relief and this was disposed o~ 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 57 (2).
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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, !953 excludng 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 o'rder on the ground
'that the application made by the appellant, the first respondent, as well
C
as others which were pending before the State Government should be
deemed to have been rejected on !st March, 1958 in view of rule
57(2).
The !st respondent then challenged this order by a writ petition in
the High Court which was allowed and the order was quashed.
The
cou'rt held that rule 57(2) was enacted only for the benefit of the applicants and did not take away the power of the . State Government to
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dispose of applications even after expiry of the prescrib..:d 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 th~ \\Tit of n1andan1us issued in the
first
writ petition,
the State Government V.'as 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
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Central Government.
'
HELD : (Per Hedge and Grover. JJ); The appeal must be allowed
(By the Court) (I) 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 application' 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,
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the State Government has power to issue a licence. [164 CJ
Dey Gupta & Company vs. State of Bihar A.l.R. J 961 Pat.
487;
referred to.
(2) There can be no estoppel against a statute.
Rule 28(1-A) and
rule 57(2) are statutory mles.
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 I st respondent's application was still pend·
ing could not change the legal position nor could it confor on the State
Government any power to act in contravention of those rules. [165 A-BJ
(3) Per Hegde and Grover JJ.); As far as the State Government
was concerned the writ issued was binding whether the decision
ren~
dered by the Court was colrrect 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.
Jn obedience tO
the writ issued by the court, the State Government did C'Onsider the
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NOOKALA v, KOTAIAH
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application of the !st 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 ma ... te of rule 57.
In
so doing it cannot be said that it had infringed the 111Gndanius issued by
tire 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 th• State, and an order made by the High Court and confirmed in
appeal by this Court and carried out by the State.
J\rticle 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 HJ
Jt 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 properlv 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 cofrectness
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
·eetition. [157 F, 158 CJ·
Re. "B" an Infant [1958] .1 Q.B. 12 C.A., The Province of Bombay
'" Western IndiG Automobile A.uocimion I.LR. [1949] Born. 591; Ponna·
/ciμ11 r. State of Madras I.LR. [19~3] Mad. sos·; Pullayya v. Nagbhusha·
"""' l .. LR. 1962 A.P. 127 F.B.; referred to.
Civ1L APPELLATE JURISDICTION : Civil Appeals Nos. 2121 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 th~ appellant (in both the appeals).
M. C. Setalvad, P. Parameswara Rao, V. Rajagopa/ Reddy,
S, L. Setia and K. C. Dua, for r~•oondent No. 1 (in both the
H
appeals).
V. A. Seyid Muhammad and S. P. Nayar. for resp<w.dent No.
2 (in both the appeals).
156
SUPREME COURT REPORTS
[l 971] l S.C. R .
. P. Ram Reddy and A. V. V. Nair, for respondents Nos. 3 and
4 (m C.A. No. 2121 of 1969) and respondent No. 3 (in C.A No
2122 of 1969).
·
·
The Judgmen, Jf H~GDE and.GRoyER, J~. was delivered by
HEGDE, J. SHAH, J. dehvered a d1sse,ntmg opmion :
. S.hah, J.
I agree that Appeal No. 2122 of 1969 must be
d1sm1ssed.
I also agree that if the State Government fails to
dispose of the application for grant of' a minina lease within the
time prescribed by the rules, ti\~ failure ,results i":i refusal to grant
the lease.
The l;Ii,gh C9urt was in error in holding that in the
ab.sence of a pi:ov1s1on enacting that even if the application stands
reiected for failure to pass an order within the time prescribed,
the State Government has power to issue a licence.
The High
Co.urt was again in_ error in holding_ that be~ause of the represental!ons made by the State before Bh1masankaran, J., in Writ Petition No. 1237 to 1957 (he State Government were estopped from
contending that the application was by the first respondent must
be deemed to have b~en 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 Aug11st 31, 195i. The first
respondent then moved Petition No. 888 of 1957 for a mandamus
directing the State Govern'Jlent to dispose of his application. By
order dated November 4, 1958, Basi Reddy, J., observed that
r. 57(2) as amended by S.R.0. No. 2753 "is intended for the
benefit of the applicant and does not relieve the Stale from performing the statutory 'functions imposed on it under rule 17 ( 1)
and 17(2) viz. of granting or refusing the licence".
Tl.e 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 functions it was, in my judgment, not open to the Central Government
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in effect to exercise appellate authority over the judgment of the
High Court. lf the order was errOJ!!!OUs it could be set aside
by an appropriate proceeding before :i 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 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. In
my view Art. 141 of the Constitution h:is 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 ~s to upset the order of this Court.
That is so, not because of Art. 141, but bec&use neither the Legislature nor the executive is invested with powers to 'upersede
judg111ents 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 prty to Writ Petition No. 888 of 1957, and he could not seek
redress in a superior court against tile order of .Basi Reddy, J.
But i: 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 havr properly been made a party to the proceeding : see Re. "B" an Infant.('). · In In re. Securitie Insurance Company(")
Lindley,
L.J., o1'<erved at p. 413:
"I understand the practice to be
perfectly well
settled that a person w:10 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 doe~ not
require much to obtain \eave. If a person alleging him-
(1) [1958] t Q.B. t 2 CA
(2) [1894] 2 Ch. 410.
158
SUPREME COTfRT REPORTS
[1971] 1 s.c.R.
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 !eave he is not entitled to appeal."
The rule has been accepted by the High Courts in India : see
The Province of Bombay v. Western India Automobile Association;(') Ponnalagu v. State of Madras;(') and Pul/ayya v. Naghhushanam. (3 )
The appellant could undoubtedly have been made a party to
a petition before the High Court. He 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 be 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 th,e relevant facts.
Amrutuam Kotaiah Naidu, the 1st respondent in these appeals
applied for the grant of a mining ]ease in respect of 915 acres and
18 cents of lands in Appalanarasimhapuram hamlet of Cheruvuruadhavaram in Kbammameth 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 comJlrising
57 acres 25 Gunthas was granted to him as per tne 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 respond(\nt was pressing the State Government to
grant 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 Gover:nment granted on mining lease to various persons some of the
areas in respect of which the respondent had asked for a mining
lease.
OJ;,viously aggrieved by those grants the respondent moved
(l) l.L.R. [1949] Born. 591.
,2) T.L.R. [1953] Mad. 808.
(3) I.LR. [1962] A.P. 127 F.B.
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NOOKALA v. KOTAIAH (Hegde, J.)
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the Central Government'under rule 57 of the Mineral Concessio.n
Rules, 1949 (to be hereinafter referred to as 'rules') on December·
8, 1955, seeking a directiQn 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 Sta:e Government to stop granting further areas to other applicants in Appalanarasimhapuram village pending investigation of
the matter and pendit'g decision of the Central Govermnent. Meanwhile on December 27, 1955, the State Government grame<l on
mining lease l acre and 20 cents of land to the ·appellant from out
of the area included in the 1st respondent's application.
On July
18, 1956, the Central Government dismissed the review petition
made by the I st 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 there\n, the Cen·
tral Government have come to the conclusion that there
is no valid ground for interfering with the decision of the ·
Government of Hyderabad, t'ejecting your application for
grant of mining lease for ir<Jin ore in Appanarasimhapuram and Ilaigudam villages, Khammameth district. Your
;;rplicLtion for revision is, therefore, rejected.
Yours faithfully,
Sdl- G. C. Jerath,
'•
Under Secretary to the Gov~rnment 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
,mended.
After rule 28(1) a new sub-rule 28(1-A) was inserted.
That sub-rule reads :
·
"Every application under rule 27 shall be disposed of
bv the State Government within 9 months from the date
oi receipt of th~ application."
At the same time rule 57 was also amended.
Amended rule 57
reads thus:
( 1) "Application .for p:view.-(1) Where a Slate
Government passes as under.-
.
(i) refusing to grant a certificate ~ approval, prospecting license or mining lease;
160
SUPREME COTJRT REPORTS
[1971] l S.C.R.
(ii) refus~ng 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 t]¥rein under clause
(iv) of sub-rule (l) of rule 23 or a mining 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 Gover1nment has failed to dispcse
of an application for the grant or renewal of a certificate
of approval or prospecting license or a mining lease within the period prescribed there.for in these Rules, sm:b
failure shall, for the purpose of these rules, be deemed to
b~ a refusal to grant or renew such certificate, license or
lense, as the case may be, and any person aggrieved by
rnch failure may, within two months of the expiry of the
period aforesaid apply to the Ce,ntral Government fo~
reviewing the case.
( 3) An application for review under this rule may
be admitted after the period of !imitation 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 57 (2) was made on August
31, 1957.
The concerned notification No. S.R.O. 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 amendmemt in the Mineral
Concession Rules, 1949, namelyProvided 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 Governmeint within six
months from the latter date.'l.
On April 16, · 1957, the 1st respondent filed another: review
petition before the Central Government.
On September 2b, 1957,
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that petition was dismissed by the C~ntral Government as being:
premature.
The relevant portion of that order reads :
"With refer~e to your application dated 16th April,
1957, on the above subject, I am directed to invite
your attention to this Ministry's notification No. Mll152(26) / 57 dated the 21-8-57 (copy enclosed) amending the Mineral Concession Rules, 1949. It will be
noticed therefrom that the application for conct-ssions
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 for review is
therefore premature at this stage and in case your application for Mining Lease 1s 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 Cemtral 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 Art. 226 of the Constitution in Writ Petition No. 888 of
1957 seeking a writ of mandamui 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 up 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 Gov·
ernment i:n 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 57 (2). The teamed judge rejected that
contention with the following observation5 :
"In my opinion this deeming provision is ~tended
for the benefit of the applicant and does not relieve the
State Government from performing the statutory functions imposed on it by rules 17(1) and 17(2) viz., of
granting c.r refus~ug the licence, and in case of. refusal
of recording in writin~ the reasons for the refusal and
of refunding the application f~."
He accepted the. petition . and issued the immdamus ;Jrayed
for.
.
. 162
SUPREME COURT REPORTS
[1971] l S.C.R .
During .the pendency of the writ petition No. 888 of 1957,
the 1st responde,nt 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 57(2) of the Mineral Concession Rules, l 949.
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, 196 l.
granted on mining lease to the respondent all the areas for which
he had applied an September 15, 19 5 3 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 reviewing the said order.
Even before that he had moved the Andhra
Pradesh High Court under Art. 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 a3 accordir.g to him the 1st respondent's
application should be deemed to have been re.iected under rule
57(2)..
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 Ce,utral Government allowed the
review petition filed by the appellant and set aside the grant made
in favour of the I st 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 Govemment should be deemed to have been
rejected on the 1st March 1958, in view of rule 57(2). Aggriev-
~d by that order the l st 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 o.f certiorari and quash the order of the Centra 1 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 pe,l\dency of that petition the appellant filed Writ Petition
No. 601 of 1965 seeking a writ of mandamus against the Central
Government and the State Gover.nment to grant him the mininir
lease for which he had applied: The High Court has ailowed
the writ petition filed by the 1st respondent and dismissed that of
ihe appellant.
Hence these appeals.
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NOOKALA v. KOTAIAH (Hegde, J.)
! 63
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 Petitioin 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 urfueld the
grant made by the State Government in favour of the l st respondent.
We shall now proceed to consider the correctness of
the reasons given by the High Court i1n support of its order.
The High Court was of the opinion that rule 57 (2) 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 applicatiQns 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 anrd Co. v. State of Bihar and Anr. ( 1 ) as well as on
the decision of Basi Reddy J. in Writ Petition No. 888 of 1957
to which reference has already bee1n made.
Neither the Patna
decision nor the judgment of Basi Reddy J. nor the decision
under appeal gives any cogent reason in support of the conclusion
that the deemed dismissal under rule 57(2) does not take away
the right of the State Government to grant the lease asked for.
The Pat1na High Court in support of its conclusion observed :
"No doubt, reading rule 27(1-A) with rule 57(2)
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 fili1ng 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 nme 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 . I'llle
57 (2) is only for the pu~ of a revieW awlication ti>
(I) A.l.R. 1961 Pat. 487.
164
SUPREME COURT REPORTS
[1971] 1_ s.c.R.
be filed before the Central Governlll.ent, ailld it is not a
part of rule 28(1-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 h
otherwise, even when a review petition is pending before the
Central Government under rule 57, the State Government can
make an order on the applicatiQn made and thus compel the
parties to file another review petition.
Further, if the Central
(}overnment gives one direction in the review petition and the
State Government p~sses an inconsistent order iin the original
pelition, there is bound to be confusion. If we read rule 27 (1A) and rule 57(2) together, there is hardly any doubt that
after the period prescribed,
the State Guvernment is incompetent to deal with the applications pendLng before it.
According
to rule 57(2), 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 Gov-
. ernmeint under rule 28(1-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 abseince of a provision providing for deemed rejection in
rule 28(1-A), the contravention of that rule does not take· away
the jurisdiction of the State Government.
That conclusion ignores
the words in rule 57(2) that deemed rejection is 'for the purpose
of these ru1es'. In view of those words in rule 57(2), it was unnecessary for the rule making authority to prescribe in rule 28(1A) the consequences of the failure on the part of the State Government to implement the mandate of rule 28 ( 1-A }.
Hence,
in our opinion, the Central Government's decision that the applications made by the appella111't, 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
groi.-ml.
The High Court was also wrong in opining that in view of
the representations made by the learned Government
Plead~r
'before Bhimasankaran J. on Aul(list 25, 1959, in Writ Petition
No. 1237 of 1957, the State Governm,,nt is e~topped from conA
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NOOKALA v. KOTAIAH (Hegde, J.)
. 165
tending that the application ma.de by the 1st respondent on September 15, 1953 must be deemed to have been refused.
There can be no estoppel against a statute.
Rule 28(1-A)
airid ~ule 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
B
that the learned Gover,nment Pleader represented to the Court that
the petition filed by the 1st respondent on September 15, 1953
was still pending disposal cannot ch~ge the legal position nor
could it confer· on the State Government any powi!r to act in
contravention of those rules.
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Yet another ground relied on by the High Court is that in
view of the writ issued by Basi Reddy J. in Writ PetitiOJ!l 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 l;>een set aside by 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 <lcision 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.
Iii obedience to the writ issued by the court, the State Government did
consider the application of the 1st respondej!lt. It granted him
the lease asked for by him.
Therefore the State Government h?s '
E
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 manclat.:
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
F
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a party and the order made in which could not be bini:ling either
on the Central Government or the appellant.
For the reasQ!ls 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 bμt in the circumstances of the case, we make no order as 1lo costs in these appeals.
ORDER
ln accordance with the opinion of the majority Civil Appeal
H
No. 2121 of 1969 is allowed and Civil Appeal No. 2122 of 1969
is dismissed.
No order as to costs in these appeals.
R.K.P.S.