M.L. Jain, J.
1. This order will dispose of two writ petitions Nos. 1009/1976. and 1970 of 1976.
2. On 20-8-1971, Mining Engineer, Jodhpur issued a public notice that a minor mineral quarry Kali Beri No. 108 of stone had become Khalsa and was available for grant for Rent-cum-Royalty lease, perhaps under Rule 21 of the Rajasthan Minor Mineral Concession Rules, 1956. In was also directed that applications for allotment of the said quarry will be received upto 21-9-1971. Hansraj made an application on 21-9-1971 and it is conceded on all hands that the lease was sanctioned by the Mining Engineer in his favour. He was directed by a letter dated 1.1.1972 issued by the said Mining Engineer that he should contact the foreman; have the quarry demarcated and complete other formalities within 15 days and if he failed to do so, his application was likely to be dismissed. The quarry was got demarcated on 3-4-1972. Hansraj alleges that thereafter he attended the office of the Mining Engineer several times for purpose of depositing the rent and executing the agreement but every time he went, he was put off and could not complete the formalities and by an order dated 5-11-1973, the said Mining Engineer withdrew the sanction On 6-11-1973. Udaram made an application for the grant of lease Hansraj also applied on 8-11-1973. The Mining Engineer, however, holding that the application of Udaram was prior in time, granted the lease under Rule 29 of the said Rules in favour of Udaram. Udaram deposited the rent on 2-2-1974 arid executed the agreement of lease on 8-2-74. Udaram alleges that since then, he has spent about 15.000/-on excavation work.
3. Hansraj filed appeal before the Director, Mines, which was. decided by him on 25-4-1975. The appeal of Hansraj was dismissed and the order of the Mining Engineer was upheld The Director (Mines) observed that there is no doubt that in the visitors' register the name of Hansraj appeared several times but he was of the view that all these entries were interpolations and that Hansraj was in default and, therefore, the sanction in his favour was rightly revoked. He also rejected the contention that Hansraj's application dated 8-11-1978 was not for fresh grant but for renewal Of the old grant.
4. Hansraj filed a second appeal against the order of the Director of Mines with the State Government. The Deputy Secretary in the Department of Mines made an order on May 21, 1976, that the revocation of the grant of the lease in favour of Hansraj was justified. But he also held that the facts that after revocation, no notice was put up on the Notice Board indicating the resumption of the quarry and Udaram presented his application on the very next day and got the quarry allotted in his favour, cast a suspicion on the whole transaction and strengthened the belief that there was certainly some collusion between Udaram and the office of the Mining Engineer. The Deputy Secretary held that the allotment was irregular and set it aside. He remanded the case to the Director, Mines and Geology for further necessary action for the grant of lease afresh of the quarry according to law and procedure.
5. Aggrieved by the aforesaid order of the State Government, Hansraj has filed the writ petition No. 1370/1976 and Udaram's petition is No. 1009/76.
6. The learned Additional Government Advocate raised an objection that these writ petitions are not entertainable under the amended Article 226 of the Constitution and, therefore, abate as provided in Section 58 of the Constitution (Forty Second Amendment) Act, because under the Mines and Minerals (Regulation and Development) Act, 1957, Section 30, an alternative remedy by way of revision to the Central Government is available to the petitioners: Section 30 is as follow s:
30 Powers of revision of Central Government. The Central Government map, of its own motion or on an application made; within the prescribe bed time by an aggrieved party revise any order made by a State Government or other authority in exercise of the powers conferred on it by or under this Act.
7. Mr. K.N. Joshi, the learned count el for Udaram in writ petition No. 1009/76 replies that the said Section 30 was not applicable because the Central Government has not prescribed the time for purposes of revision in respect of Minor Minerals. The time that has been prescribed in virtue of the rule-making powers under Section 13 of the said Act for revision, by Rule 64 of the Mineral Concession Rules, 1960, does not apply to Minor Minerals, because Section 14 of the aforesaid Act excludes Section 4 to 13 (elusive) in respect of Minor Minerals and since no time has been prescribe respect of revisions relating to minor minerals, the provisions of Section cannot be availed of. As a matter of fact the intention of the law is that the matters regarding minor minerals should end with the State Government and hence, the Rajasthan Minor Minerals Concession Rules, 1959, provide a complete code in respect of the available remedies and therefore, no revision under Section 30can even be filed. Similar argument was made in S.B. Civil Writ Petition No. 512/76 Ramnarain v. State of Rajasthan and Gupta, J. rejected the contention following an earlier decision of this Court reported in Champalal v. State of Rajasthan 1976 W.L.N. 577 It was observed that the remedy under Section 30 is not barred simply because no time limit has been prescribed for revision against the order of the St Ate Government or any other authority in respect of Minor Minerals. The Division Bench dismissed an appeal against the order of Gupta, J. Hence. I reject the argument.
8. It was next urged that the word order in Section 30 refers to the initial order made by the State Government or other authority and does not apply to an order made in the second appeal. I do not see any justification for this argument which too is rejected. The learned Counsel further submitted that the question relates to fundamental rights and therefore, even under the amended Article 226 it is not necessary for the petitioner to take recourse to any alternative remedy. This submission cannot be accepted for the reason that to fundamental right has been invoked in the petition and also for one more reason which shall appear at little later in the judgment. It was lastly pointed out that in view of M. R. Arjuna v. U.O.I. 1971 RLW 177, if a writ petition has once been admitted, it must be decided and can not be thrown out upon a technical ground. This ground of dealing with writ petitions is no more available in face of the specific provisions of Section 58 of the 42nd Amendment relating to pending writ petitions.
9. Mr. Hastimal Parekh the learned Counsel for Hansraj in reply to the preliminary objection made a separate point of defense that in his case i.e. in writ petition No. 1370/76, the sanction of lease was revoked without notice and without hearing the petitioner Hansraj in violation of principles of natural justice which can not be disregarded while making an order affecting the rights of the petitioner and in such a case the order being a nullity prier recourse to an alternative remedy was not at all necessary in a writ of certiorari In this connection he cited State of UP v. Mohemmad Nooh : 3SCR249 . There in the Supreme Court observed as follows:
If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of juri-diction or manifestly conducts the proceedings before iv in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play, the superior court may, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of the first instance even if an appeal to another inferior court or Tribunal was available, and recourse was not had to it or if recourse was had to it, it confirmed what ex-facie was a nullity for reasons afore mentioned.
10. In Radhakrishna Agarwal and Ors v. State of Bihar and Ors : AIR1973SC205 the Supreme Court observed that the rules of natural justice are attached to the performance of certain functions regulated by statutes or rules made there under involving decisions offceting rights of parties. While explaining the decision in DJO South Kheri v. Ram Sanehi Singh : AIR1973SC205 the Supreme Court however held that the limitations imposed by rules of natural justice cannot operate upon powers which are governed by the terms of an agreement exclusively.
11. On the basis of State of Gujarat and others v. Ambalal Haiderbhai etc. : AIR1976SC2002 it was further urged that rules of natural justice are not rules embodied always expressly in a statute or in rules framed there under. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be for a given case must depend to a great extent on the facts & circumstances of that case, the frame work of law under which the enquiry is held, and the constitution and nature of duties of the Tribunal or the body of person appointed for that purpose Mr. Hastimal Parekh then cited Chawdhary B.S. fakhar v. Government of Rajasthan 7, with reference to Rule 56 of the Minor Minerals Rules, which held that before a permit is cancelled, opportunity for hearing should be given Cancellation without giving opportunity is against principles of natural justice. His argument is that a duty to act judicially and to give an opportunity of hearing the petition or was implied in the M.M.G. Rules and the Mining Engineer could afford to overlook this fundamental principle only to make his order a nullity.
12. It appears well settled that when a statutory power as contradistinguished from the power under a contract, is exercised, then it is to be exercised in accordance with the principles of natural justice and if such rules are violated, then the order becomes a nullity a honest and the superior court will not decline to interfere even where the aggrieved party has not exhausted his other statutory remedies if any. It appears to me that after the 42nd Amendment this rule must yield to a rule of constitutional law which has placed a fetter on the discretion of the court. I consider that Section 30 aforesaid provides a real and effective remedy for the redress of the injury complained of and the arguments of Shri Parekh are of no avail.
18. He now urges that the question raised in his petitions relates to fundamental rights and therefore under Article 226 as amended it is not necessary for the party to pursue any alternative remedy. To this, a reply has been made that no right has been created in favour of petitioner Hansraj because until and unless an agreement under Article 299 is executed, no right flows to the petitioner. In this connection the learned Additional Government Advocate cited State of Raj v. Raghunath Singh A.I.R. 1974 Raj. 4, where in the lease was held void if not in a dance with Article 299 of the Constitution. Shri HiStimal Parakh has urged that this case has no application because none of the rules relating to Rent-cum-Royalty lease unlike the case of other leased, required that the said lease should be executed as required by Article 299 of the Constitution. Moreover, the order of cancellation of grant of lease can at least be set aside, just as an order carpooling the examination of a student was set aside in the Board of High School and Intermediate Education, U.P, and Ors. v. Kumari Chittra Srivastava and Ors : 3SCR266 .
14. The argument advanced by Mr. Parekh can not be sustained. Firstly, there should be no doubt that what the State was purporting to grant was a lease a conveyance upon the conditions given inform IV of the M.M.C. Rules, 1959, vide Rule 32. Now, no conveyance is valid unless it is in accordance with Article 299 of the Constitution which requirement can not be dispensed with either expressly or impliedly by any enactment or rules. Therefore, ho right in favour of the petitioner Hansraj, contractual or proprietary had come into existence. Secondly, as observed in E.E.C. Co. Ltd. v. State of W.B. A.I.R. 1976 S.C. 266 a citizen has a right to earn livelihood and to pursue any trade. He has a right to claim equal treatment to enter into a contract which may be proper, necessary and essential to his lawful calling. But no person has a fundamental right to insist that the. Government must enter into a contract with him. So no case of a fundamental rights is made out, nor has it been so invoked in the petition.
15. On the other hand, Mr. Joshi in petition No. 1000/76 has urged that in his case, a lease had come into being and by cancellation thereof, his fundamental right of property has been breached and he can not be thrown back by this Court to seek an alternative remedy. This argument is equally spacious. Whatever right a man can claim under the lease is nothing but one based upon a covenant which can be avoided if it was obtained by collusion or fraud. Hansraj has from the very beginning right from the Director Mines and Geology onwards been alleging that the lease in favour of Udaram was a result of collusion and if the State under the law of contracts and conveyances is entitled to revoke the grant, no question. of a fundamental right is involved, nor a breach of any rule of natural justice has taken place in Udaram's case.
16. The Rosalie of the aforesaid discussion that the preliminary objection deserves to be upheld and these petitions are liable to be rejected on that ground alone.
17. Now to merits in the writ petition No. 1370/76 filed by Hans Raj. His main contention is that the sanction was cancelled without any notice of hearing in violation of the principles of natural justice and therefore, it deserved to be restored According to the order of Mining Engineer dated 1-1-1972, it is clear that the petitioner Hansraj had a notice that if he did not comply with the rides regarding payment of rents and other formalities, his application was likely to be rejected Until 6-11-1973 nothing was done by him His contention that he contacted the office of the Mining Engineer several times for the purpose has not been accepted by the Director as a fact, rather had found it false. This Court cannot therefore, simply act upon a mere suggestion that it is impossible for a person pursuing the grant of quarry with so much zeal to refuse to comply with the directions of the Mining Engineer. Mr. Parekh fun her pointed o it that while in case of mining lease, it is provided that a lease must be executed, there is no such requirement in case of Rent cum Royalty lease. But it appears that Rule 32 of the Rajasthan Minor Minerals Concession Rules, 1959 such requires that the conditions of Rent-cum-Royalty lease shall be those contained in the model agreement form given in schedule IV, contemplates execution of an agreement Now, unless an agreement given in prescribed form is executed in pursuance of the, Article 299 of the Constitution surely no rights accrue to the petitioner so as to bind the Government. It is true that when a leas? has been sanctioned under Rule 27, it is implicit that the order of sanction can not be cancelled without giving notice but in this case a notice to complete the formalities was given on 1-1-72 It was not necessary for the Mining Engineer to issue a further notice as to why the order of grant of lease be not revoked for want of the formalities. The State Government in appeal agreed with the Mining Engineer that the petitioner did not care to do so inspite of the several opportunities available to him. The writ petition of Hansraj must therefore, fail.
18. In the writ petition of Udaram No. 1009/76, the learned Counsel for the petitioner urged that the State Government was patently in error in law when it gave a finding of collusion against the petitioner. The petitioner was a prior applicant and he was rightly granted the lease under the rules in preference to Hansraj who was a later applicant. He had invested much money, paid the rent and royalty for two years and has also executed the lease deed. His lease cannot be cancelled unless there has been any breach of terms and conditions contained in the lease. But the State Governmenthis stated in its order that after the grant in favour of Hansraj was revoked, no notice on the Notice Board was pasted and yetUdaram applied on the very next day and was also able to get the lease and hence it came to the conclusion that the lease deed deserved to be cancelled because it was brought into existence by collusion between Udaram and die Mining Engineer. The learned Counsel Mr. Joshi submitted that no rule required that a notice of a quarry being available should be pasted on the notice board and the question whether no notice was put up on the notice board as per practice was not raised before the first Appellate Court, nor was the question of collusion was agitated there. The findings of the State Government are based upon no evidence and no opportunity was given to the petitioner to disprove the allegation. It was also urged that under Rule 43 and 46, the grant cannot be cancelled as the State Government in appeal can only confirm or modify the grant but cannot set aside or cancel the same. There is Majorca in these contentions. Hansraj had been agitating from the very beginning that the grant was obtained by collusion and Udaram hid ample opportunity to show that the allegations were false. The State Government while exercising, the powers in an appeal, can modify the order I think in the context, the power to modify should include a power to revoke or cancel. The petition of Udaram therefore, can not succeed.
19. Accordingly, both these petitions are dismissed both on the preliminary objection and on merits as well. No order as to costs.