P.K. Goswami, J.
1. This appeal by special leave is against the judgment of the Division Bench of the Rajasthan High Court by which an appeal against the judgment of a single Bench was summarily rejected.
2. In answer to a notification of March 29, 1950, issued by the State of Rajasthan inviting tenders for mining rights for mica on certain terms and conditions, the appellant submitted its tender which was accepted on December 30, 1950 and a notification in that behalf was made by the State Government on February 6, 1951. granting the mining lease for mica for block No. 6 (except sidries mine) in Bhilwara District on payment of the tendered amount of Rs. 1,55,000/-. The lease was for a period of 20 years with an option of renewal of the lease for another 20 years as per conditions prescribed in the Mineral Concession Rules, 1949 (briefly the Rules). A premium of Rs. 1,55,000/- was deposited by the appellant and possession was also handed over to it on March 15. 1951. The area originally was 6021 acres but later on a dam, by the name of Meza Dam, was constructed over some parts of the original area and the appellant was left to work on 2924 acres. It is stated that the appellant spent Rs. 5,65,300/- between 1951 and 1955. It is also common case that no lease was executed within six months of the acceptance of the tender as required. On June 19, 1955, the Director of Mines and Geology, Rajasthan, sent a notice to the appellant Intimating that the order sanctioning the lease stood revoked with effect from June 6, 1955. The appellant was asked by this notice to show cause why further action to take immediate possession of the area should not be taken. It may be noted that in this notice exception was taken for the appellant not executing the lease within the requisite period of six months which, it was mentioned, expired on August 27, 1953. The appellant submitted a review application against the order of the State Government canceling the mine lease on February 23, 1957. It appears, meanwhile, the State Government proposed to grant a lease to the appellant and the latter did not press the review application. Thereafter some correspondence took place between the appellant and the State Government regarding execution of the lease its terms and conditions and the like. A reference was also made by the appellant to the Central Government on March 12. 1963. to direct the State Government to sanction the lease. On May 15, 1965, the Mining Engineer, Rajasthan, sent a notice to the appellant to deposit the dead rent amounting to Rs. 1,27,616,36 for the period 1.4.1960 to 14.9.1965 on pain of legal action The appellant preferred a revision application to the Government of India against this order. The Government of India by its order of March 19, 1966 set aside the order of May 15, 1965, demanding Rs. 1.27,616, as dead rent for block No. 6. This order is significant in more than one way. It is clearly stated in the order that the conditions under the Mineral Concession Rules 1949 under which mining or prospecting operation is allowed to be undertaken do not provide for payment of premium by the lessee except with the prior approval of the Central Government. It was also pointed out in the order that no such approval was secured by the State Government before accepting the premium of Rs. 1,55,000/- from the appellant. It was, therefore, pointed out that the acceptance of the premium was illegal. It was further held that the State Government was entitled to charge only royalty in the present case and it could charge dead rent or royalty, whichever was higher, only after execution of a formal lease.
3. Then came the State Government's impugned order of November 9, 1967, addressed to the appellant. There was reference in the above order to the fact that the appellant
Approached the Central Government in revision. The Central Government have held that the permissive permission of this block to you is no even as a licence under the Mineral Concession Rules 1949. Government; therefore, do not want that the possession of this area should remain with you any longer. Government is therefore, pleased to order that you should vacate the aforesaid block No. 6 within a month from the date of the receipt of this note, failing which such action shall be taken as may be deemed proper.
4. It may be mentioned that the Central Government in the order referred to above in the extract also observed 'this licence was not within the meaning of Mineral Concession Rules, 1949 but was governed by the General Law, e.g. the Easement Act'. (See Central Government's letter dated March 19, 1966.)
5. The appellant after receipt of the order of November, 9, 1967, instituted an application under Article 226 of the Constitution in the High Court of Rajasthan (being Writ Petition No. 691 of 1967) praying for a writ of certiorari to quash the aforesaid order, to restrain the State from revoking the licence and dispossessing the appellant from the mining area absolutely or in the alternative, till compensation alongwith refund of the premium of Rs. 1,55,000/- and the dead rent realised in excess of royalty were paid by the State. As a last alternative it prayed for a direction to the State to grant the lease of the balance area of 3629 acres or such other area to which the appellant was entitled in law.
6. The learned single Judge of the High Court dismissed the writ application as infructuous in view of the offer made by the State in its application of April 20, 1970, repeated through the learned Advocate General. The learned Advocate General submitted before the High Court that the State Government 'was still prepared to pay them compensation in order to revoke the licence granted in favour of the petitioner.'
7. In the aforesaid application of April 20, 1970, the State Government was prepared to pay compensation to the appellant at the rate of Rs. 7750/- per annum for the unexpired period of 20 years ending on March 14, 1971.
8. The learned single Judge while dismissing the application observed that if the petitioner thought the compensation was inadequate he could agitate the matter in court.
9. The appellant's appeal thereafter to the Division Bench was summarily dismissed and leave to appeal to this Court was also rejected. Hence this appeal by special leave.
10. We have heard the learned Counsel for both the parties.
11. In view of the fact that the period of the purported lease already expired on March 14, 1971, there is no question of a writ for granting the lease. Since a proper lease had, not been executed, for whatever reasons, there was no question also of exercise of an option of renewal of lease. The only question that survives is whether the State Government could realize premium in a lawful manner under the Mineral Concession Rules.
12. We do not find any provision in the Rules authorizing realisation of premium as done in this case. Section 41 of the Rules of 1949 applicable at the relevant time provides for conditions of the lease. These conditions specifically mention royalty, dead rent and surface rent, but not premium. Again proviso to Section 41(1)(iii) states that the lessee shall be liable to pay the dead-rent or royalty in respect of each mineral whichever be higher in amount, but, not both. Under Sub-section (3) of Section 41, a mining lease may contain any other special condition, subject to prior approval of the Central Government. The Central Government is, therefore, right in holding that the realization of the premium of Rs. 1,55,000/-was illegal, particularly because there was no prior approval under Sub-section (3) of Section 41 of the Rules.
13. When in this case grant of the mining lease was envisaged under definite statutory rules made in exercise of power conferred under Section 5 of the Mines & Minerals (Regulation and Development) Act, 1948, the State Government was under legal obligation to act in accordance with these rules. It could not exercise a power in the matter of grant of mining lease unknown to these rules. The State Government could not impose terms and conditions according to its own whims ignoring or disregarding the statutory rules which are binding on it. The appellant is, therefore, entitled to, a refund of Rs. 1,21, 930.71 which is due to the appellant out of the illegally realised premium of Rs. 1,55,000/- allowing the sum of Rs. 33,069.29 already received by the appellant from the Government on account of compensation.
14. The appellant's counsel made a statement in court that since the appellant had already vacated the area it will not of its own make any further claim for compensation or under any other heads of but reserves its right to raise all possible defences against any action that may be instituted by the State against the appellant in the matter of the grant of mining for mica in the area. Subject to the reservation of the above right, the appeal is partly allowed to the extent that the State Government is directed to refund Rs. 1,21,930.71 as mentioned above.
15. The appellant is entitled to its costs in this Court.