1. This is a writ petition under Article 226 of the Constitution.
2. A lease for stone quarry No. 11.19 in Fidusar area, Tehsil Jodhpur, was granted to the petitioner on 28th April, 1964, by the Mining Engineer, Jodhpur. Shrimati Kaushaliya Devi, respondent No. 2, filed an appeal against the aforesaid order to the Director of Mines and Geology. The appeal was dismissed on 18th June, 1964. Respondent No. 2 preferred an appeal to the Government of Rajasthan, Jaipur, under Rule 43 (2) of the Rajasthan Minor Mineral Concession Rules, 1959 (hereinafter called the Rules). This appeal was heard by the Secretary to the Government of Rajastnan, Industries and Mines Department. On 33th January, 1966, he submitted a note for approval to the Minister Inchar^e of thai department stating therein that the lease of the quarry in question be granted to Shrimati Kaushaliya Devi as her application was received earlier than that of the petitioner. In the note he took notice of the arguments addressed by counsel for the parties. On 26th January, 1966, the Minister Incharge signed the note thus signifying his approval thereof.
3. In compliance with the aforesaid order, instructions were sent to the Director of Mines and Geology vide Ex. 4, a copy of which was sent to the petitioner. On receiving a copy of Ex. 4, the petitioner has filed this writ petition and the main ground taken by him in this writ application for challenging the order of the State Government is that the Secretary of the Industries and Mines Department had no authority to give a hearing of the appeal and that the Minister Incharge of the department decided the appeal without giving a hearing.
4. Notice of the writ petition was given to the State of Rajasthan and to Shrimati Kaushaliya Devi, respondents Nos. 1 and 2 respectively. The reply filed by the State of Rajasthan is not very clear but the position taken up by the learned Deputy Government Advocate during the course of the arguments is that the Deputy Minister, Industries and Mines Department, had passed an order that the Secretary may hear and dispose of the appeal, and in pursuance of that order, the Secretary had heard and disposed of the appeal on 13th January, 1966.
5. It is to be examined in his case whether the Deputy Minister could have passed an order authorising the Secretary to hear and dispose of the appeal and if he could, whether the Secretary can be said to have disposed of the appeal by his order dated 13th January, 1966.
6. Under the Rules, an appeal lies to the Government as Rule 43 (2) provides that any person aggrieved by any order passed by the Director in appeal under Sub-rule (1) shall have the right of appeal to the Government Under Sub-rule (4) of Rule 43, it is provided that the orders passed by the Government under appeal shall be final. Under Rule 46, the procedure for hearing and disposing of the appeal has been provided. Rule 46 runs as follows:
'46. Procedure of appeal--(1) Under receipt of Memorandum of appeal satisfying requirements of rule 44 the appellate authority shall fix a date for hearing. It may, if it thinks fit, call for the relevant records and other information from the officer whose order is the subject of appeal:
(2) The appellate authority may confirm or modify the order under appeal, after giving the appellant an opportunity of hearing and considering any comments that might be offered by the officer who gave the order under appeal.
Under Rule 46, It is incumbent upon the appellate authority to fix a date of hearing. It is further incumbent on it that it should afford an opportunity of hearing to the appellant.
7. Who is to hear and dispose of the appeal is to be gathered from the Rules of Business made under Article 166 of the Constitution by the Governor of the State of Rajasthan, Rule 4 provides that the business of the Government shall be transacted in the Secretariat Department specified in the First Schedule and shall be classified and distributed between those departments as laid down therein. Rule 5 provides that the Governor shall, on the advice of the Chief Minister, allot among the Ministers the business of Government by assigning one or more departments to the charge of a Minister. The same rule provides that the Minister with whom a Deputy is attached may, with the approval of the Chief Minister, allot to the Deputy Minister any business appertaining to the department. Rule 6 provides that each department of the Secretariat shall ordinarily consist of a Secretary to the Government, who shall be the official head of that department, and of such other officers and servants subordinate to him as the Government may determine. Rule 7 provides for collective responsibility for all advice tendered to the Governor. Rule 9 provides that without prejudice to the provisions of Rule 7, the Minister-in-charge of a department shall be primarily responsible for the disposal of the business pertaining to that department Part IV of the Rules of Business provides for departmental disposal of business and Rule 21 in that Part which is relevant for our consideration runs as follows:
'21. Except as otherwise provided by any other rule, cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge who may, by means of standing orders, give such directions as he thinks fit for the disposal of cases in the department Copies of such standing orders shall be sent to the Governor and the Chief Minister.'
Under this rule, cases are to be disposed of by the Minister-in-charge or under the authority of the Minister-in-charge. The Minister-in-charge may, by means of standing orders, give such directions as he thinks fit for the disposal of cases in the department. The learned Deputy Government Advocate has placed reliance on the relevant standing orders in force at the time when the appeal was decided but he is not in a position to show that under the relevant standing orders the Secretary of the department was authorised by the Minister-in-charge to hear and dispose of the appeal. It may be mentioned that these standing orders were subsequently amended in September, 1967. It has, however, been argued that the Deputy Minister had expressly passed an order on the file of this case that it was to be heard and disposed of by the Secretary. This order unfortunately is of the Deputy Minister and not of the Minis-ter-in-charge. It has not been brought to our notice that the Minister had allotted to the Deputy Minister the business of disposing of the appeals arising under the Rules. As already mentioned, under RULE 5 (2) the Minister-in-charge could, with the approval of the Chief Minister, allot to the Deputy Minister any business appertaining to the department. If such an allotment had been made, it could have been contended that the Secretary had heard the appeal under the authority of the competent person, So far as the hearing of the appeal is concerned, the Secretary was not competent to hear the appeal.
8. There is yet another flaw in the disposal of the appeal. It was heard by the Secretary but it was disposed of by the Minister who did not hear it. The spirit of Rule 46 is that the appellate I authority must give an opportunity of hearing and that authority is of course to decide the case. It is not envisaged that one authority will hear the appeal and another authority will decide it on the recommendation of the authority who heard the appeal. In G. Nageswara Rao v. A. P. S. R.T. Corpn. AIR 1959 SC 308, in which personal hearing was required by the provisions of law, their Lordships of the Supreme Court observed as follows:
'The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules imposes a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the argumenta and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We, therefore, hold that the said procedure followed in this case also offends another basic principle of judicial procedure.'
We are. therefore, of the opinion that for the reasons aforesaid, the appeal preferred by respondent No. 2 was not properly decided.
9. We, therefore, quash the order passed by the State Government and conveyed to the petitioner vide Ex. 4.The State Government is directed to rehear the appeal according to law andthen dispose it ot We leave the partiesto bear their own costs in this Court.