Guman Mal Lodha, J.
1. The dispute between the rival claimants for mining leases in Raiasthan have assumed dimensions of a serious legal debate about the jurisdiction of the Additional Director, Mines and Geology (Administration) Government of Rajasthan, Udaipur, respondent No. 2, to hear the appeals under R- 44 of the Raiasthan Minor Mineral Concession Rules, 1977 (hereinafter referred to as the Concession Rules').
2. Both these writ petitions raise common Question of law and, therefore, I have agreed to the joint prayer for common hearing and common decision by one judgment. Both the petitioners, viz., Hariram and Suresh Chand, were initially granted leases and the respondents, viz., Om Prakash, and Smt. Madhu Agrawal filed appeals against the order of grant of leases to the petitioners. Both these appeals were accepted, and the order was passed to grant the lease to the rival claimants-respondents, Om Prakash and Smt. Madhu Agrawal.
3. Petitioner. Hariram filed appeal before the State Government first, and then filed revision before the Central Government against the order of the Additional Director, Mines and Geology, but this revision petition has been dismissed by the Central Government vide order dated the 21st November, 1980. Paras 3 and 4 of this order read as under :
'3. The comments of the State Government and the impleaded party and further comments of the petitioner on the comments of the State Govt. and I. P. were obtained. The petitioner has stated that he has filed a writ petition in the Hon'able Raiasthan High Court against the State Government's Order dated 4-9-79, against which the instant revision application has been filed also.
4. In view of the foregoing, the Central Government hereby file this revisionapplication. The petitioner would be at liberty to get his revision application revived by presenting a fresh application in that behalf within three months of the decision of the High Court in the aforesaid writ petition.'
4. Petitioner, Suresh Chand Mangal, filed revision application before the Deputy Secretary, Government of Rajasthan, Mines Department. Jaipur, against the order of the Additional Director, Mines and Geology, but withdraw it on November 5, 1980, on the ground that he has filed writ petition before this Court. Para No. 2 of the affidavit sworn by Shri Shailendra Garg, counsel of the petitioner Suresh Chand, mentioning this fact reads as under :
'That this revision petition has been withdrawn on 5-11-80 by me on the ground that the petitioner Shri Suresh Chand Mangal has filed a writ petition before this Hon'ble Rajasthan High Court, at Jaipur. The Dy. Sec., Mines has dismissed this revision petition on the very same ground.'
5. It would thus be seen that at the moment neither any appeal or revision petition is pending either before the State Government or the Central Government.
6. The only point raised by Shri Vimal Chaudhary, learned counsel for the petitioner, is that no appeal lies to the Additional Director under the provisions of the Concession Rules, and therefore, the orders granting leases to the respondents and quashing the grant of leases to the petitioners are patently without jurisdiction, non est and illegal having been passed without authority of law.
7. Shri Khan, the learned Government Advocate, appearing for the State Government and Shri A.K. Bhandari, learned Advocate appearing for the respondent No. 4 Om Prakash, have contested these writ petitions with equal vehemence. Firstly, it was pointed out that since statutorily, the remedies of appeal or revision are provided under the Concession Rules, and also under the Central Act. both, to the State Government and the Central Government, these writ petitions should be dismissed on the simple ground, that the petitioners have got efficacious alternative remedy which they availed of also, but now in the midst of the pendency of the cases, they cannot, be allowed topick and choose. It was also argued that the petitioners took a chance before the Additional Director when he (petitioner-Suresh Chand) argued appeal against the respondents and never took objection on the point of jurisdiction and, therefore, on account of principles of waiver, acquiescence, and estoppel, they are deprived from coming to this court in equitable jurisdiction. On the merits of the case, both the learned counsel. Shri Khan and Shri Bhandari, submitted that the rules nowhere provide appeal to the Joint Director, as Rule 44, in terms, talks only for Director, Mines and Geology.
8. Rule 43 of the Concession Rules, as well as Chapter VI, mentions the Delegation of Powers and Appeal, Rule 43 reads as under;
'Delegation of Powers. -- The powers vested in the Government under all or any of these rules shall be exercised by the Director or any other officer or officers of the Department or any other person as delegated in Schedule III of these rules. The Government may revise the Schedule III from time to time as it may deem fit.'
9. Rule 44 (1) of the Concession Rules reads as under:
'44. Appeal :-- (1) Any person aggrieved by an order of Superintending Mining Engineer or Assistant Mining Engineer passed under these rules in the following matters shall have the right of appeal to the Director or to any other officer appointed by Government in this behalf, namely :--
(a) refusing the grant of renewal of mining lease, rent-cum-royalty lease or grant of royalty collection contract :
(b) cancelling or terminating mining lease or rent-cum-royalty lease or royalty collection contract or forfeiting security deposit in whole or in part;
(c) refusing to permit transfer of rent-cum-royalty lease or mining lease.'
10. In both the Rule 43 as well as Rule 44, significant feature is that the rule-making authority has used the words 'Director or any other officer', whereas under Rule 43, any other officer has to be delegated the powers in Schedule III of these rules, but in Rule 44, all that is required, is that the Government must appoint an officer to hear the appeals under Rule 44.
11. It would be interesting to note here that the Schedule in contains a note at the end, which reads as under :--
'Note;-- The Joint Director. Mines and Geology shall enjoy the same powers as the Director of Mines and Geology, under various provisions of the Rajasthan Minor Mineral Concession Rules, 1977 as described, above.'
12. It would thus be seen that in view of the note. Rules 43 and 44 taken together, the Joint Director became competent to exercise all the powers of the Director for the purpose of Rule 43 as well as Rule 44.
13. It is significant to note that so far as Rule 43 is concerned, a delegation is necessary in Schedule III of these Rules, but so far as Rule 44 is concerned a mere order of the appointment, by the Government, of any officer can enable him to discharge the functions of Director for the limited purpose of hearing appeals under Rule 44.
14. So far as this Note to Schedule III is concerned, it has served dual purpose, because for the purpose of Rule 43. Joint Director became authorised to exercise all the powers of the Director.
15. This Note to Schedule III of these Rules, can be interpreted in two manners. Since there is a rider of 'as described above', in the note, this only refers to enabling the Joint Director to enjoy the powers of Director under various provisions of the Rule as extracted in the Schedule III to these rules. The other interpretation, as put by Shri Khan, the learned Government Advocate, is that 'as described above' it would also include Rule 44 of Chap. VI. However, now the above distinction has become academic only because admittedly there is no Joint Director and by virtue of Annexure Rule 1, submitted in the writ petition of Suresh Chand, post of Joint Director has been re-designated as 'Additional Director Mines and Geology, Udaipur'. Annexure Rule 1. dated 2nd August, 1978, reads as under:
'GOVERNMENT OF RAJASTHAN DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS.
(PERSONNEL A IV)
No. F. 1 (47)/Karmik/Ka.IV/78. dated
Mines and Geology,
Sub.: Redesignation of the Post of Jt.Director. Mines & Geology,Udaipur. ...
I am directed to convey sanction of the Governor to the post of 'Jt. Director Mines and Geology, Udaipur', in the Selection Scale of Raiasthan Administrative Service Cadre being redesignated as 'Additional Director Mines and Geology. Udaipur' with immediate effect.
Asstt. Secretary to Government.
Copy forwarded to the following for
information and necessary action :--
1. The Accountant General, Rajasthan, Jaipur.
2. The Secretary to Govt Industries & Mines, Jaipur.
3. Mines Department with reference to their U. O. Note No. 1951/CIS/78 dated 10-7-78.
Asstt. Secretary to Government.'
16. The question, which calls for adiudication, is whether by virtue of redesignation of a post, the Government had also empowered the Additional Director to perform the duties of Director for the purpose of Rule 43 or Rule 44, or both. Thus plainly speaking note has now become redundant because it is admitted by the Government that no consequent amendment has been made in the note for substitution of Additional Director for the purpose of Director.
17. It is true that for the purpose of Rule 44 even by the Government orders simpliciter without there being any delegation in the Schedule, the Government is competent to appoint an officer for discharging functions of Director for the purpose of Rule 44. It is conceded by Shri Khan, the learned Government Advocate that there is no such order in existence till today.
18. Mr. Khan's contention is that it was not necessary, because Annexure Rule 1 is only an order of redesignation and since the Government has redesignated the post of Joint Director as Additional Director, it will be deemed that wherever in the rule, the phrase. 'Joint Director' has been used including the note below to the Schedule in, it would now be read as 'Additional Director.' I am of the view that such a construction of statute is not permissible according to the well established canons of interpretation of statutes.
19. It is true that even if today the Government passes an executive order under Rule 44 directing, that the Additional Director would hear the appeals for the purpose of Rule 44, it would be perfectly valid and no rules require amendment for that purpose. This is precisely so, because Rule 44 used the word, 'Director', or to 'any other officer' appointed by the Government in this behalf. It should be noted that whereas in Rule 43, the word used is 'delegated', and in Rule 44, the word used is 'appointed'. Again, whereas in Rule 43, delegation is to be done under the Schedule III, but there is no such requirement in Rule 44. I am, therefore, perfectly justified in holding that the Government was not required to amend the rules, but all that was required, was to issue an administrative order appointing the Additional Director to function as an officer as contemplated by Rule 44. It is not intelligible why such a simple order could not be issued by the State Government, even though, the controversy was raised in appeal or revision before the Government and also in revision before the Central Government and is pending for the last about two years. Instead of passing such an innocuous administrative order simpliciter, the State Government insisted on interpreting the words Joint Director as 'Additional Director' in the note, annexed to the Schedule III to these Rules, while doing so. I am constrained to observe that the interpretation was wholly misconceived, on a plain reading of Rule 43, Rule 44 and the Note below the Schedule III along with the order of redesignation, dated the 2nd Aug., 1978 (Annexure Rule 1). I have got, therefore, no hesitation in holding that for the purpose of Rule 44 an appeal could have been entertained only by the Director unless an administrative order by the Government is passed to hear the appeals by the Additional Director. I find, not the slightest doubt that the order of redesignation from Joint Director to Additional Director (Annexure Rule 1) cannot act as a magic formula to amend the Note below the Schedule III of these Rules, mentioned above, on the basis of legal fiction of a deeming provision. Such a canon of interpretation is not permissible in any law much less against the express words of Rule 43 and Rule 44,
20. Having held so, vet another question which remains to be decided, iswhether the petitioners be deprived of relief on the ground that they have chosen to file appeal and revision before the State Government and the Central Government in two different cases, which are now no longer in existence. Yet another question is whether principles of estoppel, acquiescence or waiver should be applied to the present cases.
21. A lone debate on both the points was witnessed during the arguments. Mr. Vimal Choudhary, the learned counsel for the petitioners, relied upon the judgment of the Supreme Court in A.V. Venkateswaran v. R.S. Wadhwani (AIR 1961 SC 1506). Collector of Monghyr v. Keshav Prasad Goenka. (AIR 1962 SC 1694). (Head Note G) Rohtas Industries Ltd. v. Rohtas Industries Staff Union, (AIR 1976 SC 425). (Head Note B) and Collector of Customs and Excise, Cochin v. A.S. Bava, (AIR 1968 SC 13). (Head Note 'B') (Paras 4 and 5) and the judgments of this Court in the following cases:
1. Shri Narain v. Union of India (Civil Writ Petn. No. 1164/1969, decided on 23rd January. 1971, per V.P. Tyagi J.).
2. Bharat Bhoosan v. State of Rajasthan (Civil Writ Petn. No. 2268/1970 decided on 17th January, 1973, per V.P. Tyagi J.),
3. Duduwala v. Union of India (Civil Writ Petns. Nos. 379/1970 and 1727/1970, decided on 15-9-1971, per V. P. Tyagi J.).
22. Mr. Khan, the learned Government Advocate on the contrary, invited my attention to para 15 of the judgment in A. V. Venkateshwaran v. R.S. Wadhwani (AIR 1961 SC 1506) (supra), referred to by Mr. Chowdhary.
23. All said and done. I am of the opinion that it is not necessary to enter into this controversy at length. The deduction of law which flows from the above decisions, is that normally, a petitioner should not be allowed to invoke the jurisdiction of this Court, if he has got any efficacious remedy in that very statute wherefrom his rights flow. The well known exceptions are 'an order without having jurisdiction' or 'against the principles of natural justice' are also equally well established. Even at a time when 42nd amendment was in force, where there was an express bar of entertainment of writ petition, on the ground of alternative remedy, at least,two Full Bench cases of Andhra Pradesh and Gujarat High Courts carved out some exceptions, the history of which now need not be mentioned here.
24. Similarly, the question of 'waiver or acauiescence, or estoppel.' depends upon the facts and circumstances of each case. Undoubtedly, this Court cannot encourage the parties to blow hot and cold together to take a chance and then to take somersault after having a failure in that chance and, therefore, as I have held in Multi Expeller v. Labour Court. 1980 Raj LW 568 : (1981 Lab IC NOC 119) a person who takes chance, cannot be allowed to agitate even points for jurisdiction in the successive litigations. While holding so, I have also observed as under:--
'True in a given case, this court may allow the points of jurisdiction raised for the first time, if justice and equity warrants it, but I am firmly of - the opinion that in the facts and circumstances of this case, justice and equity would be broken on the wheels of law, if I permit this question to be raised for the first time before this Court. That being so, the petitioner cannot succeed on this also.'
25. Mr. Bhandari, the learned Advocate for the respondent also invited my attention to the judgment of the Madhya Pradesh High Court in J. M. T. Co.-Op. Society v. S. T. A. Authority, M. P., Gwalior (AIR 1965 Madh Pra 113). Para 7 reads as under ;--
'At the time of the hearing of this petition, learned counsel for the applicant sought leave for amendment of the petition by adding the ground that the decision of the Appellate Authority, presided over by Shri Mitra alone, was null and void and without jurisdiction inasmuch as under the relevant notification constituting the Appellate Authority that Authority consisted of two members. In our opinion, the petitioner cannot be allowed to raise this objection when it had not taken it before the Appellate Authority itself and even in this petition when it was filed. The facts on which the petitioner questions the jurisdiction of one member of the Appellate Authority to hear and dispose of appeals were within the knowledge of the petitioner when his appeal before the said authority was taken up for hearing. Before that Authority the petitioner did not raise any objection and submitteditself to the jurisdiction of the Authority. The petitioner cannot now be permitted, when the decision of the Appellate Authority has gone against it, to question the jurisdiction of the Appellate Authority by invoking the special jurisdiction of this Court under Arts. 226 and 227. This is clear from the decisions of this Court in Ambaram v. Gumansingh. (AIR 1957 Madh Pra 58) Ramnarayan v. Sudama. L. P. A. No. 3 of 1960, dated 5-8-1961; 1961 MPLJ (SN) 270, and of the Supreme Court in Pannalal Binirai v. Union of India. 1957 SCR 233 at p: 268: (AIR 1957 SC 397 at p. 412).'
26. There is good deal of controversy on this aspect of law also, but I am of the view that it would be improper to express any opinion at this stage, because all that is required to be seen, is whether exceptions carved out by me in Multi Expeller's case (1981 Lab 1C NOC 119) (supra) applies in the instant cases or not.
27. The petitioners were granted leases initially and the contesting respondents were refused for the same. Appeal was not filed by the petitioners and they did not choose the forum of appeal but they appeared before the Additional Director only as respondents. It is true that while appearing as respondents before the Additional Director, they should have raised objection of jurisdiction, if they were conscious of objection, they should have raised the objection. There is no material on this aspect to show that whether when the petitioner appeared before the Additional Director as respondents whether they were aware of this legal position which have to be spelled out after the reading of the various rules and order. Annexure Rule 1 and the note below the Schedule III to these Rules, and on which also the controversies have been raised here by Mr. Bhandari, the learned counsel for the contesting respondent. Can it, therefore, be said that it was conscious surrender to the jurisdiction? There is no material as I have stated above to hold that at the time the petitioners appeared as respondents before the Additional Director, they were well aware of their right to raise such objection and they were aware of the legal position that the Joint Director has been redesignated as Additional Director and that cannot be sufficient to empower the Additional Director to hearthe appeals under Rule 44 of the Concession Rules. Since much has been said before this Court by both the sides and that too with, serious conviction by the learned Government Advocate, how can it be said that the petitioner on that premature stage would be able to appreciate this legal distinction. It is well established law by series of judgments of the Supreme Court that for waiver or estoppel by conduct, it must be conscious act of surrender to the jurisdiction. That having not been established in these particular cases, I am of the opinion that the petitioners cannot be deprived from raising this objection, which they have raised both from the appeals of the Additional Director before the State Government and the Central Government and which they have raised now in this Court.
28. Undoubtedly, the point goes to the root of the case as it involves the jurisdiction of the Additional Director to hear the appeals under Rule 44 of the Concession Rules. Again. I have held above in equivocal terms, that unless the Government has issued an administrative order under Rule 44 appointing Additional Director as an Officer to hear the appeals for the purpose of Rule 44, the Additional Director cannot exercise the jurisdiction to decide the appeals merely because of redesignation of the post of Joint Director to Additional Director.
29. In view of this, it is not necessary to refer the above cases of this Court, which Mr. Chowdhary referred, in which according to Mr. Chowdhary the similar view has been taken by this Court, which was controverted by Mr. Khan, the learned Government Advocate.
30. The resultant position is that the Additional Director, at present, is not competent to hear the appeals under Rule 44 of the Rajasthan Minor Mineral Concession Rules, 1977. As a logical and legal consequence of it, the impugned orders, dated the 11th July, 1979 (Annexure 4) in the Writ Petition No. 436/ 80; and another impugned order dated 4th Sept.. 1979 (Annexure 10) in the Writ Petition No. 310/1980; are quashed.
31. However, this would not mean that I would keep a vacuum because, all said and done, the Director is competent under Rule 44 of the Concession Rules to hear the appeal. I would, therefore, direct and order that the Director should hear both these appeals unless by an administrative order under Rule 43 read with Rule 44 of the Concession Rules, the Additional Director is authorised to hear the appeal. It is further directed that this would be done within a period of two months from today and till then the status quo, as existed by virtue of the orders of this Court, would continue. The parties are further directed to appear before the Director, Mines and Geology, Government of Rajasthan, Udaipur, on 21st April, 1981 or earlier, if the Director serves notices for early date.
32. The result is that both, these writ petitions succeed and are, therefore, accented as indicated above. The parties would bear their own costs.