Judgment

RAGHUBAR DAYAL, J. (For himself, K. Subba Rao,  CJI. and S. M. Sikri, J.) : This appeal, by special leave, is against the order, dated January 30, 1962, of the Central Government, under R. 7 of the Mining Leases (Modification of Terms) Rules, 1956, hereinafter called the 1956 rules, on revision against the order, dated September 29, 1960 of the Controller of Mining Leases, under R. 6 of the said rules.

2. It may be mentioned here that respondents Nos. 28 and 27, who were formal parties, died during the pendency of the appeal and an application to bring their legal representatives on record has been rejected.

3. The facts leading to this appeal are as follows. Jairam Jagmal originally held a perpetual lease from Chimanlal Chandulal Jani and others, inamdars and owners of the mineral rights for excavating white clay from the area leased and for taking it away. The lessors entered into an agreement for executing the perpetual lease, on December 2, 1939. They did not however, execute the lease, though possession over the leasehold land had been delivered to the said Jairam Jagmal after the execution of the agreement. Ultimately, the lease was executed on November 3, 1951, in execution of a decree of a civil Court for the specific performance of the agreement to lease.

4. The original lessee, Jairam Jagmal, transferred his right, title and interest in the lease to the appellant in 1954. On September 29, 1960, the Controller of Mines modified the terms of the lease after following the procedure laid down for modifying the lease under the 1956 rules which continued to be in force in view of S. 29 of the Mines and Minerals (Regulation and Development) Act, 1957, hereinafter called the 1957 Act. The modifications were that the period of the lease was reduced to 25 years from December 2, 1939 and further renewal was to be regulated in accordance with the law and rules in force. Dead rent was payable at the rate of Rs. 10 per acre per annum. The lease was made further subject to the rules made or deemed to have been made under Ss. 13 and 18 of the 1957 Act and royalty was to be payable in accordance with S. 9 of that Act.

5. The appellant preferred a revision before the Central Government under R. 7. That was rejected.

6. The correctness of the orders challenged in appeal is questioned on various grounds. The first is that the mining lease in favorer of the appellant is, dated November 3, 1951 and, therefore, is not an existing mining lease as defined in R. 2 (c) of the 1956 rules. The lease was executed on November 3, 1951 in execution of the decree for specific performance. An agreement to lease was, however, executed on December 2, 1939. The question is whether the lease can be said to be granted in 1939 or in 1951. If it was granted in 1951, the contention for the appellant is sound, but if it is held to be granted in 1939, the contention fails and the lease would be liable to modification under the 1956 rules as R. 2 (c) defines an existing mining lease to be a lease which has been granted before October 25, 1949.

7. The granting of lease is different from the formal execution of the lease deed. The Mineral Concession Rules, 1949, made under S. 5 of the 1948 Act and hereinafter referred to as the 1949 rules, deal with the procedure for the grant of mining leases in respect of land in which the minerals belong to Government, under Chap. IV. Rule 27 deals with applications for mining leases. Rule 28A provides that when a mining lease is granted the formal lease shall be executed within six months of the order sanctioning the lease and if no such lease is executed within the aforesaid period, the order sanctioning the lease shall be deemed to have been revoked. It is really the sanctioning of the lease which amounts to the granting of the lease. Execution of the formal lease is only compliance with the legal reguirements to make the grant legally enforceable.

8. Further, the agreement of lease, dates December 2, 1939 was acted up