Pallava Granites Industries India (P) Ltd. vs Government of A.P. and Others

M.N. Rao, J.—Writ Appeal No. 1191 of 1996 is from the judgment of our learned brother M.H.S. Ansari, J., dismissing the writ petition filed by the appellant - M/s. Pallava Granites Industries India (P) Ltd. - seeking a mandamus to the State Government, the Director and the Assistant Director of Mines and Geology to extend the period of lease from 6-7-1996 to 4-1-2010 inits favour and permit it to carry on quarry operations in the land covered by Survey Nos. 105/1, 105/2, and 105/3 ad measuring Ac.4.32 cents, Ac.1.52 cents and Ac.4.49 cents respectively situate in R.L. Puram village, Cheemakurthy Mandal, Frakasham District and consequently issue despatch permits for transportation of the quarried black granite and also restrain the surface owners (pattedars) - respondents 4 to 7 - from interfering with the quarrying operations in respect of the above land. The learned judge was of the view that the relief sought by the appellant was barred by the principle of res judicata because of the earlier decision of another learned single Judge (Y. Bhaskar Rao, J.) in W.P.No.15615 of 1994 dated 7-10-1994, which was inter partes, in which it was specifically held that the extension of lease for further period could be obtained only with the consent of the pattedars. The Pattedars did not give their consent for extension of the lease period but instead themselves applied for grant of lease in respect of the same land and the State Government by an 40 order dated 28-8-1996 granted a lease for a period of 15 years. In consequence of this order of the Government, a lease deed was executed on 2-9-1996 in favour of the pattedars and accordingly proceedings were issued on 2-9-1996 by the Assistant Director, Mines and Geology in Ref. No. 4310/Q.l/96 permitting the pattedars to commence quarrying operations. Questioning the legality of this lease in favour of the pattedars, W.P. No. 19865 of 1996 was filed by the appellant herein.

As the writ petition and the writ appeal are inter-connected, we are disposing of the same by this common judgment. For the sake of convenience, the appellant is referred to as the lessee and the surface owners (the unofficial respondents) as pattedars.

The primary issue for our consideration is: Whether the judgment of our learned brother Y. Bhaskar Rao, J., rendered in W.P.No. 15615 of 1994 dated 7-10-1994 between inter partes constitutes resjudicata? The incidental issue for consideration is whether the State Government, as a condition precedent for execution of the lease deed for excavation of a minor mineral, can insist upon the lessee to obtain the consent of the pattedar (surface owner) in the absence of a specific statutory rule enjoining the Government to do so?

Granite, a valuable foreign exchange earner, is a minor mineral, the excavation of which is regulated by the Mines and Mineral (Regulation and Develpment) Act, 1957 (for short "the Act") and the Andhra Pradesh Minor Mineral Concession Rules, 1966 (for short "the Rules") made by the State Government u/s 15 of the Act.

On 22-8-1991, the pattedars executed a lease deed in favour of the lessee for a period of five years ending with 5-7-1996 agreeing to lease out the surface rights in favour of the latter in respect of the land in question subject to the conditions specified therein. The conditions include that the lessee shall pay every year Rs. 1,50,000/- to the pattedarsattherateofRs.l,000/-percubicmetre for 150 cubic metres of granite and in case more granite was quarried, the rate of payment shall be at Rs. 1,000/- for every cubic metre in excess thereof. Even if there are no quarrying operations, the lessee has undertaken to pay Rs. 1 ,50,000/- per year to the pattedars. After the expiry of the lease period, the lessee shall handover possession to the pattedars and the security deposit of Rs. 1,00,000/- shall be returned by the pattedars after the lessee handed over possession to them. A specific clause incorporated in the lease deed, which was subject matter of considerable debate before us, is in the following terms:

"The lease can be renewed with the consent of both the parties on fresh terms and conditions, six months prior to the expiry of the lease."

On 6th July, 1994, the pattedars gave a sworn affidavit expressing their intention in unequ ivocal terms that they have "no objection for issuing mining lease in favour of M/s. Pallava Granite Industries India (P) Ltd., .... upto 5-7-1996 only". Although consent was given by the pattedars in respect of the land in question only in favour of the lessee for a limited period of five years ending with 5-7-1996, another company - M/s. Dhananjay Granites - also applied for grant of quarry lease for black granite in respect of the very same land. The application of M/s. Dhananjay Granites was received in the office of the Director of Mines on 3-9-1993 whereas the lessee''s application was received much later on 28-1-1994. The Director of Mines and Geology issued proceedings on 11-8-1994 in No. 2390/K4/94 granting quarry lease in favour of the lessee herein "for a period of fifteen years subject to the fulfilment of the conditions laid down under Rule 12(5) of the Rules". The application of the other company i.e., M/s. Dhananjay Granites, although was earlier in point of time, was rejected on the ground that the consent produced by them was not from the genuine pattedar. Challenging these proceedings, the pattedars filed W.P. No. 15615 of 1994 seeking a writ of mandamus for a declaration that the action of the Director of Mines in granting quarry lease in favour of the lessee for a period of 15 years was arbitrary, illegal and unenforceable. It was their contention that the consent given by them in favour of the lessee - M/s. Pallava Granite Industries India (P) Ltd. - (respondent No. 3 in the writ petition) was only for five years but to their surprise, the lease was granted for a period of 15 years and as the same was without their consent, it must be set aside. In the first instance, interim stay was granted and the lessee filed an application seeking vacation of the stay- W.V.M.P. No. 2278 of 1994-in which it categorically stated that the consent was given only upto 5-7-1996 but it would like to get a further consent letter from the pattedars for a further period as it was granted a lease for a period of fifteen years. Considering both the rival contentions, our learned brother Y. Bhaskar Rao, J., disposed of the writ petition on 17-10-1994 in the following terms:

"In the circumstances, the writ petition is disposed of with the following tdirections: It is open to the Assistant Director, Mines and Geology, Ongole to execute the lease deed only till 5-7-1996. The extension of lease for further period can be obtained only with the consent of the petitioners (pattedars) in case they continued to be the owners of the land. No costs."

Having regard to the directions contained in the writ petition, a lease deed was executed by the Assistant Director of Mines and Geology in the statutorily prescribed Form G under Rule 8 of the Rules in favour of the lessee herein: paragraph 4 of the lease deed specifically lays down that the lease was from 5-1-1995 to 5-7-1996. As the lease period was. coming to an end, the lessee submitted a written representation on 2-7-1996 to the Director of Mines marking a copy to the Assistant Director for executing the lease deed beyond 6-7-1996 to 4-1-2010, the remainder of the original 15 years period, stating that there was no necessity for it to obtain the consent of the pattedars for grant of the lease, it was necessary only at the time of the commencement of the quarrying operations but not thereafter and as the right to sub-soil minerals completely vests in the State Government, the pattedars, who are the surface owners, have no right to insist upon their consent and this fact was not brought to the notice of the learned Judge (Y. Bhaskar Rao, J.) who disposed of W.P. No. 15615 of 1994. Two days later i.e., on 5-7-1995, W.P.No. 13147 of 1996, from out of which the writ appeal arises, was filed raising the same pleas mentioned in the representation dated 2-7-1996. A further plea was raised that the requirement of consent was necessary in respect of major mineralsas laid down in Rule 22 of the Mineral Concession Rules, 1960 for which the competent authority is the Central Government but not in the case of minor minerals; The A.P. Mineral Concession Rules, 1966 do not contain a similar provision enjoining consent of the pattedar as a pre-condition for execution of the lease deed. That writ petition was dismissed by our learned brother M.H.S. Ansari, J., on the ground that the earlier decision of Y. Bhaskar Rao,J, in W.P. No. 15615 of 1994 constitutes res judicata.

In the meantime, on 5-2-1996, the pattedars filed an application for grant of quarry lease in respect of the very same land and as their application was not disposed of by the officials of the Directorate of Mines and Geology, they filed ''W.P. No. 13299 of 1996 for a writ of mandamus directing disposal of their application in accordance with law. That writ petition was allowed by a learned single Judge, A. Gopal Rao, J., on 10th July, 1996 directing the Director of Mines and Geology to dispose of the application of the pattedars "in accordance with the rules applicable thereto as expressly (sic. expeditiously) as possible in any event within eight weeks from the date of receipt of the order". Thereafter, the Government, after considering the application of the pattedars, granted a lease in their favour for a period of fifteen years on 28-8-1996, in consequence of which an order was passed by the Assistant Director of Mines and Geology on 2-9-1996 permitting them to commence quarrying operations. That action was challenged, as already noticed supra, by the lessee in W.P. No. 19865 of 1996.

Sri Gopalam, the learned Counsel for the lessee, has argued that the judgment in W.P. No. 15615 of 1994 dated 7-104994 rendered by Y. Bhaskar Rao, J., could not be construed as resjudicata. The learned Judge had not noticed Section 24-A of the Act, under which the lawful holder of a lease or his agents or servants are entitled to enter upon the land during the currency of the lease and carry on prospecting or mining operations and the only obligation cast upon the lessee is to pay compensation in the manner prescribed to the occupier of the surface for any loss or damage which is likely to arise or has arisen in consequence of the mining or prospecting operations. Had the learned Judge (Y. Bhaskar Rao, J.) noticed this provision, he would not have disposed of the writ petition in the manner it was done and so the judgment must be declared per incuriam. The proceedings of the Director of Minesdated 11-8-1994 granting lease in favour of the lessee for a period of 15 years casts an obligation on the Director to execute formally a lease deed for the entire period without insisting upon the requirement of the consent of the pattedars since the execution of the lease deed is only a mere formality, a ministerial act. The insistence upon the consent of the pattedars for execution of the lease deed is impermissible in law as there is no provision either in the Act or in the Rules prescribing the same as a condition precedent. As the prayer in the writ petition disposed of Y. Bhaskar Rao, J., - to declare that the lease deed executed in favour of the lessee for a period of 15 years on 11-8-1994 as arbitrary, illegal and so must be set aside has not been granted and as the learned Judge only directed the Assiatant Director of Mines to execute the lease deed till 5-7-1996, the judgment must be construed as one by which the grant of lease for 15 years in favour of the lessee was upheld and, therefore, the same must be given legal effect to by the Director by executing a lease deed for the balance period of 15 years.

In opposition to this, Sri B.V. Subbaiah, learned counsel for the pattedars, had urged that the decision of Y. Bhaskar Rao, J., in W.P. No. 15615 of 1994 was a consent order and it binds both the lessee and the pattedars as both of them are parties to the writ petition. The principle of estoppel by judgment squarely is attracted divesting the lessee of its right, even assuming it has any such right to ask for execution of the lease deed for the remainder of the 15 years period. What was challenged in the writ petition before Y. Bhaskar Rao, J., was the very proceedings of the Director of Mines dated 11-8-1994, by which a lease was granted for 15 years in favour of the lessee even though the pattedars had given their consent only upto 5-7-1996. As the learned judge specifically directed that the lease deed should be executed till 5-7-1996 and any extension for further period could only be with the consent of the pattedars, that direction, which became final as no appeal was filed against that judgment, cannot be set at naught in any subsequent proceedings.

It was the submission of Sri Prakash Rao, learned Government Pleader, that the decision rendered by the learned single Judge - Y. Bhaskar Rao, J. - was not based upon the consent of the parties but after considering the rival contentions urged by both sides and as the same became final, it constitutes res judicata. The very grant of lease for 15 years in favour of the lessee was challenged before the learned Judge and the Director of Mines, in compliance of the directions issued by the learned Judge and after considering the application of the pattedars in accordance with the statutory rules, has granted lease in favour of the pattedars. The representation of the lessee dated 2-7-1996 to the Director of Mines seeking extension of the lease period was not maintainable; it was neither an original application for grant of lease nor one by which renewal was sought. Two days after making that representation, it filed the writ petition, from out of which the writ appeal arises, and so, it is not open to the lessee to contend that even when their application was pending, lease was granted in favour of the pattedars. The 15 years lease granted in favour of the lessee by the Director of Mines by his order dated 11-8-1994 stood modified as a result of the judgment of the learned Judge, Y. Bhaskar Rao, J. and, therefore, there was no need for the Government to rescind the earlier order dated 11-8-1994 before granting lease on 28-8-1996 in favour of the pattedars for a period of 15 years, which is challenged in W.P. No. 19865 of 1996.

First, we shall take up the issue concerning the principle of res judicata. The doctrine of res judicata which is also called "estoppel per rent judicatam" implies that" a final judicial decision pronouned by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the parties thereto, disposes once and for all of the matters decided, so that they can not afterwards be raised for re-litigation between the same parties or their privies". See; Spencer Bower and Turner: THE DOCTRINE OF RES JUDICATA, P.I. This was founded on considerations of justice and good sense. In the opinion of Lord Maugham L.J.,:

"..,. If an issue has been distinctly raised and decided in an action, in which the parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them". New Brunswlck Rail Co. v. British and French Trust Corporation Ltd. -1939 A.C. 1.

The legal position in our country is no different. This principle is attracted in respect of matters decided under Article 226 of the Constitution of India has been well-settled long ago. What has been decided by a High Court under Article 226 cannot be re-agitated by filing a writ petition in the Supreme Court under Article 32 of the Constitution. Speaking for the Constitution Bench of the Supreme Court in Daryao and Others Vs. The State of U.P. and Others, ., Gajendragadkar,., (as he then was) while stating that the rule of resjudicata contained in Section 11 of the CPC is founded on considerations of public policy, expressed the view:

"It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.... If a judgment has been pronounced by a Court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law.... The binding character of judgments pronounced by Courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis."

Even a regular suit between the same parties with respect to the same subject matter subsequent to a decision rendered in a writ petition between the same parties is barred by the principle of resjudicata., See: Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat), . By the 1976 Amendment Act, Section 141 of the CPC was amended by inserting an explanation to the effect that the proceedings under Article 226 of the Constitution do not fall within the ambit of proceedings "in any Court of Civil jurisdiction". Even after noticing this, it was ruled by the Supreme Court in G.K. Dudani and Others Vs. S.D. Sharma and Others, that the "principle oiresjudcata does apply to all writ petitions under Article 226 of the Constitution of India".

The pattedars and the lessee are parties to W.P. No. 15615 of 1994 decided by Y. Bhaskar Rao, J., on 7-10-1994. The plea of the pattedars was tha t since they had given consent only upto 5-7-1996, the order dated 8-11-1994 passed by the Director of Mines granting lease for 15 years in favour of the lessee was clearly illegal. The lessee specifically pleaded in that writ petition that it would get a further consent letter from the pattedars and after considering the rival contentions, the learned Judge disposed of that writ petition with a direction to the Assistant Director of Mines to "execute the lease deed only till 5-7-1996. The 35 extension of lease for further period can be obtained only with the consent of the petitioners (pattedars) in case they continued to be the owners of the land". This judgment became final and constitutes res judicata in all subsequent proceedings between the same parties, and with respect to the same subject matter. The finality attached to that judgment cannot be set at naught either directly or indirectly in a subsequent proceedings either by the parties themselves or their privies. We must also mention in this context that the lessee filed a sworn affidavit on 24th July, 1994 before the Director of Mines stating that it applied for lease for a period of 15 years, that the pattedars gave consent for a period of five years and that they promised to give further consent for the remaining period. This affidavit is at pages 125 to 127of the file produced before us by the learned Government Pleader. Based upon this, evidently, thinking that the pattedars would/ in the normal course, give their consent for the entire period of 15 years, the Director of Mines issued proceedings on 8-11-1994 granting lease for a period of 15 years. When this order was challenged by the pattedars on the ground that the lease was granted beyond the period for which consent was given by them, the lessee pleaded once again that it would obtain consent. It was only after considering the rival contentions, the learned Judge (Y. Bhaskar Rao, J.) disposed of the writ petition limiting the lease to the period for which consent was given by the pattedars with a direction that the extension of lease for further period could only be with the consent of the pattedars.

There was no impediment, whatever, for the lessee to plead before Y. Bhaskar Rao, J., that by virtue of Section 24-A of the Act, it was not necessary for it to obtain the consent of the pattedars for claiming extension of the lease period. Evidently realising that such a plea might not pass muster, it consciously stuck to the stand that it would approach the pattedars for consent for the remainder of the period. The learned Judge, after considering the rival submissions, adjudicated the matter and that decision, we think, cannot be construed as one rendered on the basis of the consent of the parties. The consequence of the judgment is that the execution of the lease deed became dependant upon the consent of the pattedars. The lessee had full opportunity to raise that contention but consciously and deliberately it did not do so and its failure in this regard disentitles it, in a subsequent proceedings, from raising that plea., Union of India (UOI) Vs. Nanak Singh, . the execution of the lease deed by the Director of Mines and Geology in favour of the lessee was the direct consequence of and in compliance of the judgment of our learned brother Y. Bhaskar Rao, J.

Having failed to raise the plea as to the applicability of Section 24-A, which the lessee might and ought to have raised, it is forbidden from raising that plea in a subsequent proceeding. The principle of constructive res judicata incorporated in Explanation IV to Section 11 of the CPC squarely comes into play. See: P.K. Vijayan Vs. Kamalakshi Amma and Others, .

We cannot accept the argument advanced for the lessee that the judgment of Y. Bhaskar Rao, J., wasper incurmm, in that it was rendered without noticing Section 24-A of the Act, which is in the following terms:

"24-A. Rights and liabilities of a holder pf prospecting licence, or mining lease: (1) On the issue of a prospecting licence or mining lease under this Act and the rules made thereunder, it shall be lawful for the holder of such licence or lease, his agents or his servants or workmen to enter the lands over which such lease or licence had been granted at all times during its currency and carry out all such prospecting or mining operations as may be prescribed:

Provided that no person shall enter into any building or upon an enclosed Court or garden attached to a dwelling house (except with the consent of the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so.

(2) The holder of a prospecting licence or mining lease referred to in sub-section (1) shall be liable to pay compensation in such manner as may be prescribed to the occupier of the surface of the land granted under such licence or lease for any loss or damage which is likely to arise or has arisen from or in consequence of the mining or prospecting operations.

(3) The amount of compensation payable under sub-section (2) shall be determined by the State Government in the manner prescribed."

Referring to Subbarama Reddy and Ors. v. Union of India, See: ILR 1974 A.P. 909. wherein it was held that the Government is the owner of the land and consent of the pattedar is not required for grant of a lease and it is always open to the Government, when the pattedar refuses to give consent, to requisition the land, Sri Gopalam, learned Counsel for the lessee, has urged that the interests of the pattedars are fully taken care of by Section 24-A.

The doctrine of per incuriam is invoked very rarely and its application is limited to ''decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, See: Moreile v. Vakeling (1955) 2 QB 379. This view was accepted by our Supreme Court in Mamleshwar Prasad and Another Vs. Kanhaiya Lal (Dead) through L. Rs., . wherein it was held that "the doctrine will not be extended to cases which were merely not fully argued or which appear to take a wrong view to the authorities or to misinterpret a statute". The quintessence of the principle was stated neatly by Sir John Donaldson M.R., of the English Court of Appeals:

"I have always understood that the doctrine of per incuriam only applies where another division of this Court has reached a decision in the absence of knowledge of a decision binding on it or a statute and that in either case it has to be shown that, had the Court had this material, it must have reached a contrary decision. That is per incuriam. I do not understand the doctrine to extend to a case where, if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion." Duke v. Reliance Systems Ltd. (1987) 2 All. E.R. 858.

Had the lessee argued the matter before Y. Bhaskar Rao, J., with reference to Section 24-A of the Act and had the learned Judge considered that we do not think that he "must have reached a contrary decision". The language of the Section is capable of more than one interpretation. The authprisation given to the lessee, his agents and workmen by sub-section (1) of Section 24-A to enter the lands over which lease has been granted was "during its currency" for the purpose of carrying out mining operations. The words "during its currency" imply that the right to enter upon the land must be ascertained with reference to the period specified in the lease deed which also contains the conditions subject to which the lease is granted. It can also be said that the aforesaid right of the lessee is traceable to the order by which lease is granted without actual reference to the terms of the lease deed in which the specified period is different from the period specified in the order granting lease. Which of the two interpretations should be accepted does not fall for our consideration in this case. Had our learned brother Y. Bhaskar Rao, ., considered Section 24-A, he might have accepted one or the other of the above two interpretations. We are unable to hold that the learned Judge must have accepted the latter interpretation with the consequence of the decision becoming per incuriam.

We shall now refer to the rulings relied upon for the lessee. In Gujarat Pottery Works Vs. B.P. Sood, Controller of Mining Leases for India and Others, , the lessors entered into an agreement for executing a perpetual lease on December 2,1939 but however, no lease deed was executed though possession of the land has been delivered after the execution of the agreement for excavating white clay. The lease deed, in fact, was executed only on November 3,1951 in compliance of a decree passed by the Civil Court for specific performance of the agreement of lease. The original lessee transferred his right in the lease to Gujarat Pottery Works, the appellant before the Supreme Court, in 1954. The terms of the lease were modified by the Controller of Mines on September 29,1960 reducing the period of lease to 25 years from December 2,1939 and if was further made subject to the rules made or deemed to be made under Sections 13 and 18 of the Mines and Minerals (Regulation and Development) Act, 1957. The question whether the lease could be said to have been granted in 1939 or 1951? In determining that question, Rule 2(c) of the Rules, which were continued to be in force after the 1957 Act came into farce, which defined an existing mining lease to be a lease which has been granted before October 25,1949, fell for consideration. The Supreme Court ruled that the sanctioning of the lease amounts to granting of the lease and the execution of the formal lease is only in compliance of the legal requirements to make the grant legally enforceable, having regard to the position in Rule 28-A which required that when a mining lease is granted, the formal lease shall be executed within six months of the order sanctioning the lease. The Supreme Court also observed that the agreement of lease was acted upon by the parties, possession was given for excavating the mineral - white clay- and the lessor undertook that pursuant to this agreement, we will execute a proper lease....". The execution of the lease deed pursuant to the decree granted by the Civil Court was also taken note of by the Supreme Court. This ruling, in our view, does not help the case of the lessee-appellant before us. The lease that fell for consideration before the Supreme Court was between private parties. Where the lessee agreed for a lesser period as in the present case and the lease deed was executed, he cannot, at the expiry of the term, ask for extension, especially when the lease deed itself was the result of a decision rendered by this Court, which attained finality.

It was next contended by Sri Gopalam for the lessee relying upon the statement of law in Mathura Prasad Bajoo Jaiswal and Others Vs. Dossibai N.B. Jeejeebhoy, . that "a pure question of law unrelated to the facts which give rise to a right, cannot be deemed to be a matter in Issue" arid, therefore, the decision of Y. Bhaskar Rao, J., has to be ignored. We cannot accept this contention. As already noticed supra, the decision of Y. Bhaskar Rao, J., does not incorporate a pure question of law unrelated to the facts; on the basis of the facts and the contentions advanced, the decision was rendered. The execution of the lease deed by the Director of Mines in favour of the lessee being the direct consequence of compliance of the decision rendered by Y. Bhaskar Rao, J., we cannot countenance the contention that the decision of the learned Judge was illegal since Section 24-A of the Act was not noticed by him.

The other decision on which very strong reliance was placed by Sri Gopalam is A.R. Antulay Vs. R.S. Nayak and Another, in support of the plea that when a particular argument was not advanced before the Court by the Counsel for one 10 of the parties, the decision rendered by the Court should not be construed as res judicata in subsequent proceedings. We find little merit in this submission. In Antulay''s case (14 supra), the question posed was whether the Supreme Court has "exercised power not given to it by Parliament or the Constitution and acted under a power not exercisable by it". That question surfaced in the context of the validity of the earlier order passed by the Supreme Court directing the trial of Sri A.R. Antulay by one of the judges of the High Court nominated by the Chief justice, when, as per the statute, the case was to be tried by a Special Judge of the rank of a Sessions Judge. Speaking for the majority, Sabyasachi Mukherji, J., (as he then was), after reviewing the case law held:

"The Parliament did not grant to the Court (the Supreme Court) the jurisdiction to transfer a case to the High Court of Bombay. However, as the superior Court is deemed to have a general jurisdiction, the law presumes that the Court acted within jurisdiction. In the instant case, that presumption cannot be taken, firstly because the question of jurisdiction was not agtated before the Court, secondly these directions were given per incuriam as mentioned herein before and thirdly the superior Court alone can set aside an error in its directions when attention is drawn to that error. This view is warranted only because of peculiar facts and circumstances of the present case. Here, the trial of a citizen in a special Court under special jurisdiction is involved, hence, the liberty of the subject is involved."

From the aforesaid observations, it is clear that the decision of the majority was founded upon the premise that a question pertaining to jurisdiction if not agitated in the earlier proceedings and a direction clearly contrary to a statutory provision was granted, the same, in a subsequent proceedings, cannot be construed to be res judicata. We must also mention that the Supreme Court took great care to point out the special circumstances in the case and laid emphasis on the jurisdictional aspect emanating from the clear statutory provision. And so based upon this ruling, we cannot hold that the judgment of Y. Bhaskar Rao, J is per incuriam. There was no lack of jurisdiction when the case was dealt with by the learned judge nor the direction given was in any manner in breach of any express statutory provision. As there was no defect of jurisdiction when the case was dealt with by the learned Judge, the precedent cited - Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., , - to the effect that a defect of jurisdiction cannot be cured by consent or waiver has no relevance In the present context.

We, therefore, answer the primary issue concerning resjudicata against the lessee-appellant.

Whether the State Government could, as a condition precedent for execution of the lease deed in respect of a minor mineral, insist upon the consent of the pattedar, although there is no specific statutory rule enjoining the Government to do so? Having regard to our answer to the principal issue, although this question does not arise for consideration, we are inclined to deal with it to obviate the necessity of considering this question if the summit Court were to take a different view to our answer to the primary issue.

Section 3(c) of the Act defines ''mining lease'' as one granted for the purpose of undertaking mining operations and indudesa sub-lease grated for such purpose. Mining operation, by clause (d), means any operations undertaken for the purpose o( winning any mineral. Clause (e) inclusively defines ''minor minerals'' as building stones, gravel, clay and sand used for prescribed purposes and confers power on the Central Government to declare, by notification, any other mineral as a minor mineral. Prospecting licence is defined by clause (g) as a licence granted for the purpose of undertaking prospecting operations and the expression "prospecting operations" is defined by clause (h) as meaning all operations undertaken for the purpose of exploring, locating or proving mineral deposits. Sub-section (1) of Section 4 lays down that prospecting or mining operations shall be undertaken only in accordance with the terms and conditions of a prospecting licence or as the case may be a mining licence granted under the Act and the Rules made thereunder. State Government undertakings and government corporations specified in the second proviso are exempted from the operation of sub-section (1). Sub-section (2) lays down that no prospecting licence or mining licence shall be granted otherwise than in accordance with the provisions of the Act and the Rules. In regard to minor minerals, Section 14 lays down that the provisions of Sections 5 - 13 have no application. By Section 15, the State Government is empowered to make rules in respect of minor minerals. We have already extracted Section 24-A supra and discussed. Rule 5 of the Rules says that no person shall undertake quarrying of any minor mineral except under and in accordance with the terms and conditions of a quarry lease or permit granted under the Rules. Rule 8 lays down that the lease deed shall be executed in Form-G. Sub-rule (5) of Rule 12 specifically deals with regulation and grant of leases for granite, the minor mineral in question. It lays down, inter alia, that when more than one application was received, they should be disposed of according to the date of receipt. In respect of applications received on the same day, they shall be referred to Government for direction. This order or priority can be departed from by the Director of Mines for reasons to be recorded in writing and with the previous approval of the Government. Clause (c) of sub-rule (5) says that within 180 days of their receipt, all applications for grant of quarry lease shall be disposed of otherwise they shall be deemed to have been refused. In the case of Government lands and patta lands, if the applications are not disposed of within the above period, they shall be deemed to have been granted. It also lays down that the lease deed shall be executed within 30 days of granting of the lease or within such further period as the Director may allow in this behalf. Clause (f) incorporates the conditions of the lease; inter alia, it lays down that if no polishing unit is setup within a period of two years from the date of grant of lease, the lease is liable for termination. Rule 20 says that subject to a contract to the contrary, the quarry lease granted under the rules shall confer 5 on the lessee, the right to quarry, carry away, sell or dispose of the minor mineral specified in the lease deed and found upon the lands specified therein. Rule 31 also specifies the further conditions subject to which a quarry lease shall be granted. Clause (vii) of Rule 31 mandates that the lessee shall commence quarrying operations within two months from the date of the grant.

From a perusal of the relevant rules, it is uncontroversial that there are no specific provisions either requiring the consent of the pattedar or dispensing with such a consent for execution of the lease deed in favour of the lessee. In the case of major minerals, such a requirement is obligatory under the second proviso to clause (h) of sub-rule (3) of Rule 22 of the Mineral Concession Rules, 1960 issued by the Government of India in exercise of the powers conferred by Section 13 of the Act. The State Government, with a view to facilitating smooth working of the mines, has been insisting upon the requirement of the consent of the pattedars. Can such a requirement be construed as impermissible in law? We do no think so. The practice, the State Government has been following, is not in violation of any of the statutory rules. The lessee herein itself was the beneficiary because of this practice; one of the rival applicants - M/s. Dhananjay Granites-although applied for the lease in respect of the same land much earlier to the lessee herein could not get the lease as it did not submit the consent letter from the genuine pattedar. In the affidavit filed on behalf of the lessee herein in the application seeking vacation of the stay in W.P. No. 15615 of 1994 decided by Y. Bhaskar Rao, J., Sri K. Balakrishna Reddy, Managing Director, stated in explicit terms that "I have assured the department that before the expiry of these two years, I will get a further consent letter from the pattedars. Though the lease is granted for 15 years, I will have to submit the consent letter after the expiry of the two years. Only then, I will be permitted to operate the quarry." The prevailing practice, even according to the lessee, was binding upon it.11 cannot, therefore, wriggle out of that commitment especially when the lease was granted pursuant to the directions granted in its favour in the aforesaid judgment by our learned brother Y. Bhaskar Rao, J. Even if there were to be a statutory provision specifically dispensing with the requirement of consent of the pattedars, still the lessee''s conduct would have amounted to waiver of such a statutory right as such statutory provision could not be construed to be one in the interests of the general public or conceived of in the public interest; it must be construed as one intended for the benefit of private individuals. It is settled legal position that where a statute or the rules are silent, the executive can fill the gaps in order to facilitate smooth working of the Act or the Rules. We have to look to the substance and not the procedural technicalities in judging the legality of a matter like the present one. The. requirement of consent of the pattedars would be fair to both sides. It would avoid future litigation by the pattedar. If the consent of the pattedar was not at all required, we are inclined to think that the statutory rules would have stated so. Only a mining lease granted in contravention of the Act or the Rules can be said to be void as per Section 19 of the Act. The grant of mining lease in favour of the pattedars, which is challenged in W.P. No,19865 of 1996, cannot be said to be vitiated by reason of contravention of any of the provisions of the Statute or the Rules.

Towards the end of the oral arguments, Sri Gopalam made a submission, without substantiating it, that we cannot look into the file for the purpose of ascertaining the reasons for the Director of Mines to grant lease in favour of the pattedars herein subsequently. Evidently, he wanted to seek support from the ruling of the Supreme Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, . which lays down the proposition that when an order made by a statutory functionary is based on certain grounds, its legality must be judged with reference to the reasons so mentioned and cannot be supplemented by fresh reasons in the form of an affidavit or otherwise. This principle has no relevance to the present case. As the statutory conditions have been complied with and the mining lease was granted in favour of the pattedars after considering their application, the same cannot be challenged on the ground that the order of lease is bereft of reasons. In the writ petition filed by the lessee (W.P. No.l3147 of 1996), from out of which the present writ appeal arises, the prayer sought was only for extension of the lease period. In the other writ petition - W.P. No. 19865 of 1996 - the lease granted in favour of the pattedars is challenged and in this, no separate arguments are advanced. The reliance sought to be placed upon Mohinder Singh16 is, therefore, totally misconceived. We do not find any contravention creeping into the grant of lease in favour of the pattedars or the subsequent execution of the lease deed in their favour. Dismissal of W.P. No. 19865 of 1996 must be the necessary consequence of the foregoing discussion,

In the result, the writ appeal and the writ petition are dismissed, but in the circumstances, without costs.