T.V.R. Tatachari, J.
(1) This Civil Writ Petition has been fied by M/s. Kesoram Cement, Proprietor, Kesorarn Industries & Cotton .Mills Ltd., Basant Nagar Post, Karirnnagar District, Andhra Pradesh, represented by its Vice-President Shri K. C. Jain. The respondents are (1) The Government of India, represented by the Secretary, Ministry of Steel and Mines (Department of Mines); (2) Government of Rajasthan, represented by Secretary, Industries and Mines Department, Jaipur ; (3) Director of Mines & Geology, Government of Rajasthan, Udaipur (4) M/s. Oriental Talc Products (Pvt.) Ltd., Jaipur ; and (5) The Mining Engineer, Department of Mines, Government of Rajasthan, Jaipur. The petitioner has prayed that the orders of the first and second respondents, dated September 11, 1972, and January 10, 1973, respectively, be quashed.
(2) The facts which have given rise to this Writ Petition are as follows. By a notification (Annexure K), dated March 9,1967, the Government of Rajasthan, second respondent (hereinafter referred to as the State Government) notified that an area of 8 square miles as per description given in the notification covering portions of the villages Ballupura, Ramas, Rampura, etc. in Sikar District in the State of Rajasthan will be auctioned for the grant of a mining lease for the mineral lime-stone at 11 A.M. on April 10, 1967, under Rule 20 of the Rajasthan Minor Mineral Concession Rules, 1959, at a place mentioned in the notification. It was stated in the notification that an area of 244.40 acres in two plots retained for Departmental prospecting for lime-stone in Patan area (in Sikar District) by a notification No. DMG/ Gen-I/F/14/61-62, dated August 29, 1962, was thereby declared free under Mineral Concession Rules, 1960, and Rajasthan Minor Mineral Concession Rules, 1959, and was included in the area of 8 square miles proposed for sale by at.ction. The notification set out the terms and conditions of the sale. One of the conditions was as under :-
'1.If any party later on with the consent of the Government decides to set up a cement factory and wishes to acquire the area under auction for grant of concession under Mmcr 1960, the Government would be at liberty to determine the lease, and in that case comensation at the rate of 25% of the first year deed rent of the lease shall only be given to the lessee.'
(3) It may be stated here that lime-stone is the prime raw material for the manufacture of cement, and that lime-stone used for non industrial purposes is regarded as a minor mineral, but when used for industrial purposes it is regarded as a major mineral.
(4) On June 8, 1968, M/s. Oriental Tale Products (Pvt) Ltd. (fourth respondent), submitted an application to the State Government under section 10 of the Mines and Minerals (Regulation and Development) Act, 1957, and Rule 22 of the Mineral Concession Rules, 1960, which was received on June 12, 1968, for the grant of a mining lease for the minerals calcite and dolomite over an area of about 200 acres in village Rampura from out of the area of 8 square miles mentioned in the aforesaid notification, dated March 9, 1967. The State Government rejected the said application on April 28, 1969, on the ground that the area applied for was included in the area of 8 square miles which the State Government had proposed to auction for lime-stone under the Rajasthan Minor Mineral Concession Rules, but the auction could not, however, be held as there were stay orders from the Rajasthan High Court, and that the area applied for would be disposed of only for lime-stone by auction and a mining lease could not be granted for different minerals such as calcite and dolomite. Against the said order, the fourth respondent preferred a revision petition to the Central Government (first respondent) on June 3 27, 1969, under Section 30 of the Mines and Minerals (Regulation and Development) Act, 1957, and Rule 54 of the Mineral Concession Rules, 1960. The Central Government appears to have called for the comments of the State Government on the said revision petition, and the latter sent its comments on February 4, 1970, in which it represented that it had decided not to grant to the fourth respondent a mining lease under the Mineral. Concession Rules, 1960, in the area in question, since it intended to put the entire area of 8 square miles to auction for lime-stone under the Rajasthan Minor Mineral Concession Rules as such a course could secure a larger revenue to the State.
(5) At that stags, the petitioner herein, M/s. Kesoram Cement, which has its works at Basant Nagar for the manufacture of Portland Cement for which the main raw material is lime-stone, wanted to set up a cement factory in Sikar-District in the State of Rajasthan. According to the petitioner, the State Government welcomed the idea and suggested the Patan lime-stone deposits area as the suitable site for the proposed cement factory, and the petitioner, thereforee, submitted an application to the State Government on June 17, 1970, for a mining lease in respect of about 5200 acres (2104.04 hectares) in the several villages in Sikar District for lime-stone for the manufacture of cement. The said 5200 acres included the 200 acres applied for by the fourth respondent and in respect of which a revision petition was pending before the Central Government. On August 12, 1970, the petitioner was granted a mining lease for lime-stone in respect of the entire area of about 5200 acres for the setting up of a cement factory subject to the conditions, inter aha, that the petitioner should obtain a license to put up a cement plant from the Central Government within six months from the date of the commencement of the lease, that the order shall stand revoked without a notice if the petitioner did not execute a proper agreement within six months from the date of the order, and that it shall not start working in the area unless it had executed a proper agreement and obtained a specific order from the State Government permitting it to start the work. According to the petitioner, it had already made an application for license and it executed a lease-deed on October 15, 1970, in Form 'K.' of the Mineral Concession Rules, 1960.
(6) On February 4, 1971, the State Government sent its further comments on the revision petition preferred by the fourth respondent to the Central Government rating that the situation had changed altogether since the area applied for by the fourth respondent formed part of the area which had been granted to the. petitioner for lime-stone as a major mineral by its order, dated August 12, 1970 for the purpose of installing a cement factory, that the State Government had obtained the consent of M/s. Oriental Talc (Pvt.) Ltd. (fourth respondent) before granting the mining lease to the petitioner, and that, thereforee, the Central Government should reject the revision petition of the fourth respondent. The said further comments of the State Government were forwarded to the fourth respondent and the latter wrote to the Central Government (Annexure R-VI) to the counter affidavit of the fourth respondent on June 25,1972, itating' later alla, that it was M/s. Modi Minerals and Grinding Mills (P.) Limited which had given consent to the State Government, that M/s. Oriental Talc Products(P.)Ltd. and the said M/s. Modi Minerals and Grinding Mills (P) Limited were two different and distinct concerns/and that the application of M/s. Kesoram Cement, petitioner herein, for putting up a cement plant in the State of Rajasthan had in fact been rejected by the Central Government, and as a consequence the State Government, by letter dated February 9, 1971, informed M/s. Kesoram Cement (petitioner herein) that the matter stood dropped.
(7) Then, on September 11, 1972, the Central Government passed an order. No. 420 of 1972 (Annexure G to the Writ Petition), whereby the order of the State Government, dated April 28, 1969, was set aside. and the State Government was directed to entertain the application for mining lease subnutted by the fourth respondent on June 12, 1968, and 'pass orders granting the mining lease within four months' to the fourth respondent. Accordingly, pursuant to the aforesaid order of the Central Government, the State Government passed an order (Annexure H to the Writ Petition), dated January 10, 1973, granting a mining lease for calcite and dolomite to the fourth respondent in respect of the 201.65 acres, i.e. 81.648 hectares applied for by it, with liberty to include further the mineral lime-stone with the permission of the State Government after paying prospecting charges, etc. Sub-sequently, on January 30, 1973, the State Government issued Corrigenda (Annexures C and D to the Writ Petition) deleting an area of 201,65 acres or 81.608 hectares from the mining lease granted to the petitioner and granting the same to the fourth respondent. Soon after the said orders, the fourth respondent executed a proper lease deed on February 1, 1973, and the same was registered on February 16, 1973. According to the fourth respondent it had since then started working on the area under its lease, and intimated the State Government on February 9, 1973, about the same in the prescribed form (Annexure R-III to the counter affidavit of the fourth respondent).
(8) The petitioner thereupon filed a revision petition on February 23, 1973 (Annexure E to the Writ Petition), before the Central Government under Rule 54 of the Mineral Concession Rules, 1960, against the consequential orders (Annexures H, C and D to the Writ Petition) passed by the State Government on January 10, and 30, 1973, in pur' suance of the order. No. 420 of 1972, of the Central Government, dated September Ii, 1972. The petitioner also prayed for interim stay of the execution of the lease in favor of the fourth respondent by the State Government. It is stated that as the petitioner did not receive any reply from the Central Government for some time, the representatives of the petitioner went to Jaipur and to New Delhi and made inquiries on March 26-27,1973, and learnt that the Central Government had passed an order directing the State Government to grant the lease for about 200 acres to the fourth respondent that the petitioner, thereforee, addressed a letter on March 29, 1973 (Annxure F to the Writ Petition), to the Central Government (first respondent requesting for orders staying the execution of the lease deed in favor of the fourth respondent and that since no reply was received from the Central Government, the petitioner filed the present Writ Petition on April 4,1973, praying that the Order, No. 420 of 1972, passed by the Central Government on September 11, 1972 (Annexure G) and the order, dated January 10, 1973 (Annexure H) passed by the State Government be quashed.
(9) In opposition to the Writ Petition, a counter affidavit of Shri A. S.Deshpande, Under Secretary in the Ministry of Steel and Mines (Department of Mines), was filed on behalf of the Union of India (first respondent). A reply, supported by an affidavit of Shri Sunder Singh, Superintending Mining Engineer in the Rajasthan State Department of Mines and Geology, Udaipur, was filed on behalf of the second, third, and fifth respondents, and a counter affidavit of Shri Vishnu Kumar Aggarwal, Managing Director and Principal Officer was filed on behalf of the fourth respondent Rejoinders were filed on behalf of the petitioner in answer to the reply filed on behalf of the second, third and fifth respondents and to the counter affidavit filed on behalf of the fourth respondent.
(10) Before adverting to the contentions urged on behalf of the petitioner, it is convenient to deal with a preliminary objection raised on behalf of the second, third, fourth and fifth respond nts Mr. G. C. Sharma, learned counsel for the fourth respondent contended the the petitioner has filed a revision petition before the Central Government against the orders, dated January 30, 1973 (Annexures C and D to the Writ Petition) passed by the State Government and the same is pending, and that since it had availed of the alternative remedy available to it under Rule 54 of the Mineral Concession Rules, 1960, this Court should not entertain the Writ Petition. Dr. Singhvi, learned counsel for the second, third and fifth respondents, also put forward a similar contention. Both the learned counsel pointed out that in the revision petition filed by the petitioner before the Central Government, the petitioner raised the contention that the Central Government violated the principles of natural justice in not givien the petitioner an opportunity to represent his case in disposing of the revision petition filed by the fourth respodent, which conctemion he has raised in the present Writ Petition also, and that the petitioner cannot, thereforee, be permitted to pursue the two remedies simultaneously. Mr. Sharma referred to the decisions in Dey Gupta and Co. v. Stale of Bihar, Serajunddin and Go. v. State of Orissa, and Kolagada Chennabasappa v. State Government of Mysore. In the case of Dev Grpta & Co. (supra), while a revision petition against nondisposal of an application under Rule 27 of the Mineral Concession Rules, 1949, was pending before the Centra'1 Government, a Writ Petition was tiled -n the High Court for the same relief. A Division Bench of the High Court, after negativing the other contetions in the Writ Petition, observed in paragraph 4 of the judgment that the Central Government was in seisin of the matter and could even at that stage grant a lease to the petitioner and cancel the lease of the second respondent if it so thought proper, and that so long as the petitioner was seeking its remedy before the Central Government, it was not possible to give any relief to it under Article 226 of the Constitution, ft has to be noted that the said decision did not hold that the Writ Petition before it could not be entertained at all or that it was not maintiable merely because an alternative remedy was availed of. The circumstane of an alternative remedy being avilable or the fact that the petitioner has actually availed of sudi remedy are only factors which have to be taken into consideration by a High Court in dealing with a Writ Petition under Article 226. But, it cannot be laid down as a genera] principle that no Writ Petition is maintainable merely because of the said circumstance or fact. In the case of Serajuddin and Co. (supra) also, a Division Bench of the High of Orissa observed that the existence of an alternative remedy is not a bar to the exercise of Writ jurisdiction, but the High Court may refuse to interfere when alternative remedies are more oficacious and complete. In the case of Ko/agada Chennabasappa (supra) also, it was observed by a Division Bench of the High Court of Mysore that though the existence of another remedy does not affect the jurisdiction of the Court to issue a writ, it is a thing to be taken into consideration in the matter of granting writs.
(11) In answer to the preliminary objection, Mr. Basi Reddy, learned counsel for the petitioner, contended that the revision petition filed by the petitioner before the Central Government was against the corrigenda, dated January 30, 1973, that no doubt the petitioner raised in that revision petition the question of violation of principles of natural justice with respect to the older of the Centra! Government in the revision petition filed by the fourth respondent but the said revision petition of the petitioner is no longer an effective and efficacious remedy in view of the stand taken by the Union of India in the present writ petition. The learned counsel pointed out that the Central Government has taken a stand in their counter affidavit filed in the present writ petition that the petitioer had no locus standi and was not entitled to any opportunity in the revision petition filed by the fourth respondent and that in the circumstances the revision petition filed by the petitioner cannot be regarded as an effective and adequate remedy. We consider that the contention of Mr. Basi Reddy has to be accepted as correct. It has been staled in the collator affidavit that the petitioner was not a parly either before the State Government or in the revision petition preferred by the fourth respondent and there could, thereforee, be no question of giving any notice toil in the said revision, that the petitioner had no interet which coud be affected by the order of the Stale Government dated April 28, 1969, which was the subject matter of adjudication by the Central Government in the revision preferred by the fourth respondent that the action of the Central Government in passing the order in he revision petition preferred by the fourth respondent was quite valid and in accordance with law. and that the petitioner had no right which could be prejudiced by his absence before the Central Government in disposing of the aforesaid revision petition preferred by the fourth respondent. Inview of the said definite stand taken in the counter affidavit against the ease of the petitioner, it cannot be said in our opinion, that the revision filed by the petitioner before the Central Government would be an effective, efficacious and adequate remedy, although it is ture that the Central Government has to act as a quasijudicial Tribunal in disposing of the said revision petition. We, theretore, reject the preliminary objection raised by the learned counsel for the second, third, fourth and fifth respondents.
(12) Coming now to the merits of the Writ Petition, Mr. Basi Reddy, learned counsel for the petitioner, put forward three contentions : (i) that the order (Annexure G to the Writ Petition; passed by the Central Government on September 11, 1972, was vitiated by violation of principles of natural justice, in that, in dealing with the revision petition preferred by the fourth respondent and deciding the same in his favor, no notice was given to the petitioner and no opportunity was given to it to represent its case in support of the grant made in its favor by the State Government during the pendency of the revision peitition filed by the fourth respondent and to correct or contradict the statements made by the fourth respondent in its revision petition which were prejudicial to the petitioner ; (ii) that the said impugned order of the Central Government suffered from an error on the face of the record in-as-much as, in making the order, the Central Government totally ignored the legal effect of Rules 58, 59 and 60 of the Mineral Concession Rules, 1960; and (iii) that the order Annexure H to the Writ Petition) passed by the State Government on January 10, 1973, as well as the Corrigenda (Annexures C and D to the Writ Petition) issued by the State Government on January 30, 1973, pursuant to the order of the Central Government (Annexure G), dated September 11,1972, were also vitiated.
(13) As regards the first contention, the learned counsel for the petitioner submilted firstly that by the date of the impugned order (Annexure G) passed by the Central Government on September 11, 1972, in the revision petition filed by the fourth respondent the petitioner had acquired a right to or, at any rate, an interest in the area granted to it on lease by the State Government and, thereforee, the Central Government ought to have given it an opportunity to represent its case before passing the order (Annexure G), dated September 11, 1972. This was denied by the respondents, and it was submitted on their behalf that no lease deed had been duly executed by the petitioner in accordance with the requirements prescribed, that all the terms and conditions had not been fulfillled, and that consequently no right or interest had been acquired by the petitioner by September 11, 1972.
(14) As stated earlier, the State Government passed the order (Annexure A) dated August 12, 1970, in which it was stated that the Government was pleased to grant mining lease to the petitioner on the terms and conditions mentioned in the order. The area of about 5200 acres (2104.04 hectares) covered by the order admittedly 'ncluded the area of 200 acres applied for by the fourth respondent. One of the conditions in the order was that the petitioner should obtain a license to put up a cement plant in Rajasthan within six months from the date of the commencement of the lease, which period, however, could be extended by the State Government on being satisfied that the delay in obtaining the license has been for reasons beyond the control of the company. The petitioner stated in paragraph 4 of the Writ Petition that the petitioner had applied to the Government of India for a letter of intent and industrial license, that the Government of India had recommended the same subject to clearance under the Monopolies and Restrictive Trade Practices Act, and that the matter was pending with the Monopolies Commission. Thus, even according to the petitioner, the matter was pending and the license had not been granted till the date of the Writ Petition.
(15) Another condition was that the petitioner should instal a cement manufacturing plant within two years from the date of the commencement of the lease. According to Rule 31 (2) of the Mineral Concession Rules, 1960, the date of commencement of the period for which a mining lease is granted is the date on which the lease deed is executed under subrule (1) of Rule 31. Whether a lease deed was executed by the petitioner in accordance with Rule 31 (1) is itself a matter of controversy between the parties, and we will consider the same presently. But, the said question of execution of the lease deed is not material as far as the submission of the respondents based on the two conditions referred to above is concerned. The submission was that the two conditions had not been fulfillled by the petitioner, and thereforee, it should be held that no right or interest had been acquired by the petitioner in the area in question. The said submission cannot be accepted, because, even assuming that the two conditions relating to the obtaining of a license and the installation of a cement manufacturing plant had not been fulfillled, that alone does not necessarily show that no right or interest had been acquired by the petitioner or the following reason. It was provided intheordcr (Annexure A), dated August 12, 1970, that in the event of a breach of the said conditions, the lease shall be liable to be determined after issue of sixty days' notice with forfeiture of security amount and without any compensation whatsoever. This provision clearly contemplates a subsisting lease, as determination of a lease c.in only be if it is a subsisting lease. Thus, a breach of the two conditions pleaded by the respondents, far from showing that there was no right or interest in the area in question, presupposes the existence of a right or interest ueder a subsisting lease in respect of that area. thereforee, even if there was a non-fulfilment of the two conditions by the petitioner as pleaded by the respondents, it does not necessarily mean that the petitioner had no right or interest in the area in question. Thus, the submission of the respondents based on alleged breach of the conditions does not support their contention that the petitioner had not acquired any right or interest in the area in question.
(16) Coming now to the question of execution of the lease deed, Rule 31 (1) provides as follows :-
'WHERE,on an application for the grant of a mining lease, an order has been made for the grant of such lease, a lease deed in Form K. or in a form as near thereto as circumstances of each case may require, shall be executed within six months of the order or within such further period as the State Government may allow in this behalf, and if no such lease deed is executed within the said period due to any default on the part of the applicant, the State Government may revoke the order granting the lease and in that event the application fee shall be forfeited to the State Government. '
The petitioner stated in paragraph 5 of the Writ Petition that subsequent to the order (Annexure A) dated August 12, 1970, several letters were written by it to the State Government, that in response to a letter of the petitioner, dated September 12, 1970, the State Government wrote to the petitioner a letter, dated September 16, 1970, requiring the petitioner to contact the Mining Engineer, Jaipur, in connection with the execution of the mining lease, that accordingly the petitioner contacted the Min'ng Engineer and purchased the necessary stamps as per the instructions of the Mining Engineer who fixed the date October 15,1970, for the execution of the lease deed, that the Vice-President of the petitioner company flew to Jaipur on October 14, 1970, and signed a lease deed on October 15, 1970, in Form 'K' prescribed under the Rules, and that the Mining Engineer, Jaipur, appended his signature, and thus the lease deed was executed covering an area of 5,200 acres. We may state here that the learned counsel for the petitioner stated beforeus that some of the dates were not correctly given in paragraph 5 of the Writ Petition, and gave us the dates mentioned above as the correct dates. In reply to the said statements, it was submitted in the counter affidavit filed on behalf of the fourth respondent that what appears to have been done was that a draft agreemeat seems to have been prepared and the same remained unexecuted so far, that a proper agreement of lease had to be duly executed on behalf of the State Government by the Director or the Deputy Director (Admn.), Mines and Geology, as per circular No. D. M. G./M 00 (Agreement -59), dated March 4, 1959 (Annexure R I to the counter a fidavit of the fourth respondent), that further, the lease agreement, to be enforceable, had to be registered both under the Transfer or Property Act as also under letter No. D-13944/59/F.3(4) 39/Ind.(B) 59/417, dated January 10, 1960 (Annexure R-11 to the counter affidavit of the fourth respondent), and that it could not, thereforee, be said that a valid and enforceable lease agreement had been executed between the State Government and the petitioner. In his rejoinder, the petitioer submitted that the Circular (Annexure R-1), dated March 4, 1959, was not in operation as it was issued under the Mineral Concession Rules, 1949, which did not apply to mining leases granted after 1960, and that there was no need for regisiralion of the lease deed as under Section 90 of the Indian Registration Act, all leases by the Government were exempt from registration.
(17) In the counter affidavit filed on behalf of the respondents 2, 3 and 5 also, it was averred that the lease deed was to be executed by the Director or the Deputy Director (Admn.), Mines and Geology, as per the Circular, dated March 4, 1959, and it was added that another office order (Annexure Ii to the counter affidavit of the second, third and fifth respondents), dated March 17, 1961, was passed by the Directorate of Mines and Geology empowering the Assistant Mining Engineers to get the leases executed and then submit the same, duly attested, to the Djrector or the Deputy Director (Admn.) for his signature, and that the said order was passed in order to save the parties the inconvenience of going to the Directorate, but the cxecu:ion of the lease would become final only after the Director or the Deputy Director signs the same. It was also stated that in the present matter the Director or the Deputy Director did not sign the petitioner's mining lease till March 29, 1973, as the petitioner did not deposit the sum of Rs. 1,46,829.60 which was required to be deposited against the prospecting charges incurred by the State Government in prospecting the area granted to the petitioner, that the petitioner's mining lease was not, thereforee, final and complete, and that the petitioner knew about the same as is clear from its letter (Annexure Iii to the counter of the second, third and fifth respondents), dated March 29, 1973. In his rejoinder to the said counter affidavit, the petitioner submitted that the circular dated March 4, 1959, as well as the Office Order dated March 17, 1961, were not in operation as they were issued under the Mineral Concession Rules, 1949, which did not apply to mining leases granted after the year 1960, that even according to the said Office Order, the Assistant Mining Engineers were empowered to execute the Mining lease deeds, that the petitioner was directed to approach the Mining Engineer and accordingly it executed the lease deed with the Mining Engineer, Jaipur, and that the said execution was, thereforee, final so far as the petitioner was concerned. The petitioner added that it was not aware that the Director or the Deputy Director had to sign the lease deed, or that he did not so sign because the petitioner had not deposited the prospecting charges. As reg irds the Said charges, the petitioner submitted that the collection of prospecting charges was not authorised under the Mines and Minerals (Regulation and Development) Act, 1957, or under the Mineral Concession Rules 1960, and that was why the State Government also never insisted or informed the petitioner about the deposit till October 9, 1972, when, for the first time, the petitioner received a letter No. F.24 (24) Kharris/70 dated October 7, 1972 (Annexure M to the Writ Petition) from the Deputy Secretaiy, Rajasthan Government, referring to the said deposit. The petitioner also submitted that the lease was finally sanctioned and granted in favor of the petitioner on August 12, 1970, and a lease deed was only to be formally executed between the parties. As regards registration, the petitioner reiterated its stand that the lease deed needed no registration n view of Section 90 of the Registration Act under which all leases by the Government are exempt from registration, and pointed out that there was no recital in the lease deed that it had to be registered, and that in the statutory Form 'K'' in the Mineral Concession Rules, 1960, also, there was no mention about registration.
(18) Rule 31(1) of the Mineral Concession Rules, 1960, provides that where an order has been made on an application for the grant of a mining lease, a lease deed in Form 'K or in a Form as near thereto shall be 'executed'. What amounts to 'execution' within the meaning of the Rule has not been made clear in the Rules. The model Form 'K' of mining lease given in the Rules also does not contain any indication. thereforee, the expression 'execution' has to be understood in the normal sense of the signing of the document by the parties or their authorised representatives. In the present case, a lease deed in Form 'K' was admittedly signed on October 15, 1970, by a representative of the petitioner and by the Mining Engineer. Jaipur. The petitioner did not file a copy of the lease deed. On our direction, the second, third and fifth respondents filed photo-stat copies of the relevant portions of the lease deed marked as Annexures 'A' and 'B' along with an affidavit of Shri Sunder Singh, Superintending Mining Engineer in the Rajasthan State Department of Mines and Geology, Udaipur. The portion, Anmxure B, shows that the lease deed was signed by a representative of the petitioner and by the Mining Engineer, Jaipur, on October 15, 197 It does not appear to have been signed by the Director or the Deputy Director, and an averment to that effect was made in the affidavit of Shri Sunder Singh. By the Circular No DMG/M-60, (Agreement-59), dated March 4, 1959 Annexure R-1 to the counter of the second, third and fifth respondents), which itself was based upon an earlier Government Notification No. F- 61(61)GA/A/56, dated 4th/7th February, 1958, the State Government issued instructions to regulate the procedure of execution of agreements under the Mineral Concession Rules, 19^9, and the Rajasthan Minor Mineral Concession Rules, 1955, to the effect that prospecting license agreements rela'ing to major minerals in their respective jurisdiction should be signed by the Mining Engineers and the Assistant Mining Engineers, while mining lease agreements relating to major minerals should be signed by the Director or the Deputy Director (Adminis- tration). Mines and Geology. According to the Office Order, dated March 17, 1961 (Annexure R-11 to the counter affidavit filed on behalf of the second, third and lifih respondents), Assistant Mining Engineers were empowered to get the agreements executed which are beyond their competency and submit the same, duly attested as per the rules, to the Directorate of Mines and Geology or to the Mining Engineers concerned as the case may be for counter signatures. It is true that the said Circular and the Office Order were issued under the Mineral Concession Rules, 1949. But, Rule 68 of the Mineral Concession Rules, 1960, clearly provided that on the commencement of the Rules of 1960, the Rules of 1949 shall cease to be in force 'except as regards things done or omitted to be done before such commencement'. thereforee, unless subsequently .cancelled or withdrawn, the Circular and the Office Order have to be regarded as continuing to be in force. We have not been shown any such subsequent cancellation or withdrawal. There is, thereforee, no force in the plea of the petitioner that the said Circular and Office Order are not applicable to mining leases granted after 1960. Thus, the mining lease in favor of the petitioner had to be signed by the Director or the Deputy Director. As it was not admittdiy so signed till September 11, 1972, the date of the order of the Central Government in the revision petition filed by the fourth respondent the execution of the mining lease in favor of the petitioner cannot be said to have been completed by the said date. In that view, the question as to whether the lease requires to be registered does not arise and it is not, thereforee, necessary to consider the plea of the second, third, fourth and fifth respondents that the lease required registration.
(19) It has, however, been contended by Mr. Basi Reddy on behalf of the petitioner that it was immaterial even if there was no completion of the execution of the mining lease in favor of the petitioner, and that the mining lease must be held to have been granted to the petitioner when the lease was sanctioned and the order (Annexure A) dated August 12, 1970, was passed by the State Government, and consequently the petitioner had acquired a right to or, at any rate, an interest in the area in question. We consider that the said contention has considerable force. As held in M/s. Gujarat Pottery Works Private v. B. P. Sood, (paragraphs 7 and 11) :
'IT is really the sanctioning of the lease which amounts to the granting of the lease,'
and
'THEexecution of the formal lease is only compliance with the legal requirements to make the grant legally enforceable.' In the order (Annexure A), dated August 12, 1970, the State Government clearly stated: 'the Government is hereby pleased to grant mining lease for lime-stone to the applicant on the following terms and conditions...' There can, thereforee, be no doubt that the grant of the mining lease was made in favor of the petitioner by and under the aforesaid order, date August 12,1970. It has, thereforee, to be held that the petitioner had acquired by virtue of the said order an interest, though not a right, in the area covered by that order with effect from August 12, 1970, and that he had the said interest by September 11, 1972, the dated of the impugned order (Annexure G) passed by the Central Government in the revision petition filed by the fourth respondent.
(20) Mr. Basi Reddy then contended that since the petitioner had an interest in the entire area covered by the order (Annexure A), dated August 12, 1970, by the date, September 11, 1972, on which the impugned order (Annexure G) was passed by the Central Government in the revision petition filed by the fourth respondent principles of natural justice required that the Central Government should have suo motu given a notice and afforded an opportunity to the petitioner to represent its case in support of the grant made in its favor by the State Government during the pendency of the revision petition of the fourth respondent but before the impugned order was pased, and to correct or contradict the statements made by the fourth respondent in its revision petition which were prejudicial to the petitioner. The argument of the learned counsel was that the fourth respondent filed the revision petition under Rule 54 of the Mineral Concession Rules, that the Central Government, in hearing the revision petition and passing an order under Rule 55, acted in a quasi judicial capacity, and so it was incumbent upon it to hear the petitioner before deciding the revision petition, and that in-as-much as it did not do so, it contravened the principles of natural justice which apply in such a case, and the order passed by it was liable to be quashed.
(21) In support of his arguments, the learned counsel referred to a a number of decisions. In Shirji Nathubhai v. Union of Jndia, (paragraph 9), in which it was held that the Central Government, while deciding a revision petition under Rule 54 of the Mineral Concession Rules, 1949 (which was in effect similar to Rule 55 of the Mineral Concession Rules, 1960), acts in a quasi judicial capacity, and as such it was incumbent upon the Central Government before coming to a decision to give a reasonable opportunity to the other party whose rights were being affected, to represent his case.
(22) The learned counsel also referred to the decision of the Supreme Court in A. K. Kraipak v. Union of India, (paragraph 13), and argued that even if the Central Government is regarded as exercising its administrative power in deciding the revision petition, it had. to act justly and fairly and not arbitrarily or capriciously as held in the said case, in-as-much as its decision would affect the petitioner's interest, and it ought to have, thereforee, given an opportunity to the petitioner to represent its case.
(23) Another decision referred to by the learned counsel was the Divisional Forest Officer, South Kheri and others v. Ram Sane hi Singh. In that case, at an auction held by the Forest Officer, Ram Sanehi Singh purchased the right to cut timber from certain forests. On a later date, the Divisional Forest Officer cancelled the order of the Subordinate Forest Officer without giving an opportunity to Ram Sanehi Singh to represent his case. The Supreme Court held that granting that the order of the Divisional Forest Officer was administrative and not quasijudicial, the order had still to be made in a manner consonant with the rules of natural justice when it affected Ram Sanehi Singh's rights to property.
(24) To the same effect was the decision of the Supreme Court in State of Assam v. Hari Singh. In that case, the Divisional Forest Officer, Kachar Division in the State of Assam, provisionally accepted the tender of one Hari Singh. The said acceptance was subject to an appeal to the Conservator of Forests, Assam. In appeal by Safique-ud-din, who had offered a lower bid, the Conservator of Forests, without issuing a notice of the appeal or giving any other intimation to Hari Singh, set aside the acceptance of Hari Singh's tender. The Supreme Court held that 'when deciding the appeal against the order of the Divisional Forest Officer, the Conservator of Forests had to act fairly and in a manner consistent with the rules of natural justice, that is, to consider the respective claims after giving an opportunity to the persons directly interested in the result of the appeal to make their representations, and to consider them objectively', and that the ordered the Divisional Forest Officer accepting the tender of Hari Singh could be set aside 'after a hearing consistent with the minimum requirements of a judicial approach, that is, the first respondent (Hari Singh) should have been given an opportunity to convince the Conservator of Forests that the order of the Divisional Forest Officer was correct, legal and proper '.
(25) Again, in M/s. D. N. Roy and others v. State of Bihar, the Central Government, in exercise of its suomotu power under Section 30 of the Mines and Minerals (Regulation and Development Act, 1957, cancelled a mining lease granted to M/s D. N. Roy by the State Government, without informing M/s. D. N. Roy at any stage that the Central Government proposed to exercise its suo motu pover and without asking M/s. D. N. Roy to show cause against exercise of such power. The Supreme Court held that the failure of the Central Government to give an opportunity to M/s. D. N. Roy vitiated the order of cancellation,
(26) It is true that in view of the above decisions of the Supreme Court, it has to be regarded as well settled that the Central Government, in passing an order under Rule 55 in a revision petition filed under Rule 54 of the Mineral Concession Rules, 1960, acts in a quasijudicial capacity, and that even if the Central Government, in deciding the revision acts in exercise of its administrative power, it has still to act justly and fairly and not arbitrarily, and has to give an oportunity to the person whose interest would be affected by its decision. But, a perusal of the facts in each of the cases referred to above shows that the person that claimed an opportunity to represent his case was one who had acquired .an interest in the subject matter in question prior to the commencement of the proceeding in which he claimed an opportunity to represent his case. Thus, in Divisional Forest Officer v. Ram Sanehi Singh (supra). Ram Sanehi Singh purchased the right to cut timber, and subsequently the Divisional Forest Officer cancelled the sale. Similarly, in State of Assam v. Hari Singh (supra), Hari Singh's tender was accepted by the Divisional Forest Officer, and it was in the appeal filed subsequently by Safique-ud-din that the acceptance of Hari Singh's tender was set aside by the Conservator of Forests. It was in those circumstances that the principle of natural justice w.is applied, and it was held that the person whose right or interest was directly involved in the subsequent proceeding, should have been given an opportunity to represent his case.
(27) On the other hand, the facts in the present case were different. The fourth respondent applied to the State Government for a mining lease in respect of about 200 acres on June 8, 1968, which was received by the State Government on June 12, 1968. The State Government rejected the said application on April 28, 1969. Against the said order rejecting the application, the fourth respondent preferred a revision petition to the Central Government on June 27, 1969. The Central Government called for the comments of the State Government on the said revision petition, and the latter sent its comments on February 4, 1970, in which it represented that it had decided not to gram the mining lease to the fourth respondent since it intended to put the entire area of 8 square miles including the area of 200 acres applied for by the fourth respondent to auction for mining lime-stone under the Rajasthan Minor Mineral Concession Rules. At that stage, on June 17, 1970, the petitioner applied to the State Government for a mining lease in respect of 5200 acres (2104.04 Hectares). The State Government granted the mining lease to the petitioner on August 12,1970. Thereafter, on February '4,1971, the Sate Government further comments on the revision petition preferred by the fourth respondent to the Central Government statating that in view of the mining lease granted by it to the petitioner in respect of the area of 5200 acres including the area of 200 acres applied for by the fourth respondent the revision petition of the fourth respondent should be rejected by the Central Government. The Central Government, however, allowed the revision petition on September 11, 1972. It will thus be seen that the petitioner had no interest of any kind in the area in question prior to the date of the application of the fourth respondent to the State Government for a mining lease, or when the revision petition was filed by the fourth respondent before the Central Government and it was only during the pendency of the revision petition before the Central Government that it acquired an interest by virtue of the grant of the mining lease by the State Government.
(28) The question, thereforee, is whether in those circumstances, principles of natural justice were attracted and the Central Government should have suo motu given an opportunity to the petitioner to represent his case in the revision petition pending before it. In our opinion, no such principle of natural justice was attracted in the circumstances. As stated earlier, the petitioner had no interest in the area in question when.the fourth respondent appli6d to the State Government for a mining lease or when the revision petition was filed by the fourth respondent before the Central Government. The revision petition was filed under Rule 54 (1) of the Mineral Concession Rules, 1960. Rule 54 (2) provides for a person to be made a party to the revision petition filed by an unsuccessful party like the fourth respondent only if that party had been granted amining lease or a license (vide M. Seshanna v. Union Government of India, Ministry of Steel and Mines. (Paragraph 11) The petitioner was not, thereforee, made, in our opinion rightly, a party to the revision petition. It was only more than a year after the filing of a revision petition that, the petitioner acquired an interest in the area which was the subject matter of the revision petition which was pending at that time. As the petitioner acquired interest in the subject matter of the revision petition during the pendency of the revision petition, the fourth respondent was not in law under any obligation to-implied the grantee pendente lite (petitioner) in its revision at that stage. Nor was the Central Government under any legal obligation to sue motu implead or issue a notice to the petitioner and thus give it an opportunity to oppose the revision.
(29) Mr. Basi Reddy argued that since the Central Government was informed by the State. Government about the mining lease granted to the petitioner, it was but fair and just that the Central Government should have suo motu imp leaded or given notice, to the petitioner and thus afforded an opportunity to represent its case. But, what is just and fair in a given case depends upon the facts and circumstances of that case. The petitioner was only a grantee pendente lite, and as such would in,law be bound by any order passed in the revision petition on the principle of Us pendens. Turner, L. J. observed in the leading case of Bellamy v. Sabine, (857) 1 De G 566, on the doctrine of Us pendens as under :-
'ITis, as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation-that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendants alienating before the judgment or decree, and would be driven to commence his proceodings de novo, subject again to be defeated by the same course of proceed-. ings.'
It, is also well settled that a suit or proceeding is commenced by the filing of a plaint or application, and appeal or revision proceedingsa rising out of the suit or application area continuation of the suitor application, and lis pendens continues during the appeal or revision, vide Mohammad Hanif & another v. Khairat Ali. In view of the effect of the doctrine of Us pendens, it would befair and just that the transferee or grantee pendente lite should bepermitted to take part in the suit or proceeding. That was why provision has been made in Order 22 Rule 10 of the Code of Civil Procedure enabling such person to or upon whom an interest in the subject matter of the proceeding has come or devolved during the pendency of the suitor proceeding to continue or oppose the proceeding, as the case may be. The principle of natural justice or fairness or justice was thus given effect to in the said provision. But, it is one thing to say that such transferee or grantee pendente lite should in the interest of fairness or justice be allowed to take part in the proceeding if he applies for permission to do so, and it is entirely a different thing to say that the Court or Authority is under an obligation to suo motu implead or issue notice to such transferee or grantee pendente lite, and that if it does not do so, the order passed in the proceeding would be invalid. In our opipion, there is no such obligation or duty, and the, order would not be invalid. On the other hand, the order would be valid and binding on the said transferee or grantee pendente lite on the principle of lis' pendens.
(30) In this connection, our attention has been drawn by Mr. Basi Reddy to the decision of a single Judge (P. C. Pandit J.) of the High Court of Punjab and Haryana in Bakhtawar Singh and others v. Nirmal Singh. The learned Judge held that an application by a transferee pendente lite cannot be rejected merely because the principle of Us pendens applies, that on the contrary Order 22 Rule 10 enables such transferee to become a party to the pending proceedings though they do not compel him to be one, and that the application must be granted unless there is exceptional ground for its rejection. The learned Judge also held that no complications would arise by the addition of the transferee pendente lite, because he would not be entitled to raise defenses which were not open to his transferor. The said propositions cannot be disputed, and they are quite in accord with what we have held above.
(31) It was pointed out by Mr. Basi Reddy that the petitioner had no knowledge of the pendency of the revision petition. But, for the purposes of the applicability of the principle of lis pendens, absence of such knowledge is immaterial, as it is settled law that the said principle will apply and the order in the revision petition would be ending on the grantee pendente lite even if the said grantee was unaware of the pendency of the revision petition. In the case of Bellamy v Sabine (supra). Lord Cranworth explained that the doctrine of Us pendens did not rest on the ground of notice. His, Lordship observed :
'IT is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him not because it amounts to notice but because the law does not allow litigant 'parties to give toothers, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.'
The judgments in the case of Bellamy v. Sobine (supra) were quoted and followed by the Privy Council in Faiyaz Husain Khan v. Prag Narain.
(32) We, thereforee, hold that the petitioner being grantee pendente lite, neither the Central Government nor the fourth respondent was under any legal or equitable obligation to suo motu implead. or issue notice to the petitioner and afford it an opportunity to oppose the revision petition or represent its case or justify the grant made by the State Government in its favor pendent hie. We should not, however, be understood as holding that if in a given case a subsequent grantee like the petitioner comes to-know about the pendency of the revision petition, and applies to the Central Government for being heard in the revision, the Central Government has no power at all to give such an opportunity to the applicant. Section 30 of the Mines and Minerals (Regulation and Development) Act and Rules 54 and 55 of the 1960 Rules confer a wide power of revision upon the Central Government, and it is open to the Central Government, if it thinks fit to do so, to give an opportunity to such an applicant. All that we are holding in the present case is that the Central Government is not under any legal or equitable obligation to implead or issue notice by itself, i.e, suo motu to a grantee pendente lite like the petitioner.
(33) For all the above reasons, the argument of the learned counsel cannot be accepted, and the first contention of Mr. Basi Reddy on behalf of the petitioner is consequestly rejected.
(34) The second contention of Mr. BasiReddy was that the impugned order of the Central Government, dated September 11,1972, suffered from an error on the face of the record in-as-much as, in mak: ing the order, the Central Government totally ignored the legal effect of Rules 58, 59 and 60 of the Mineral Concession Rules, 1960. The said rules read as under :-
'58.Availability of areas for regrant to be notified- (1) No area which was previously held or which was previously held or which is being held under a prospecting license or a mining lease or in respect of which an order had been made for the grant thereof but the applicant has died before the execution of a license or lease, as the case may be, or in respect of which order granting license or lease has been revoked under sub-rule (1) of Rule 15 or sub-rule (1) of Rule 31, shall be available for grant unless- (a) an entry to effect is made in the register referred to in subrule (2) of Rule 21 or sub-rule (2) of Rule 40, as the case may be, in ink; and (b) the date from which the area shall be available for grant is notified in the Official Gazette at least thirty days in advance. (2) The Central Government may,forrcasonstoberecorded , in writing, relax the provision of sub-rule (1) in any special case (No. MII-164 (12)/61 dated 16th October, 1961).' '59. Availability of certain areas for grant to be notified- In the case. of any land which is otherwise, available for the grant of a prospecting license or a mining lease but in respect of 338 which the State Government has refused to grant a prospecting license or a mining lease on the ground that the land should be reserved for any purpose the State Government shall, as soon as such land becomes again available for the grant of a prospecting license or mining lease, grant the license or lease after following the procedure laid down in Rule 58. (No.MII-1(23)/63, dated 9th July 1963).'
'60.Premature applications- - Applications for the grant of a prospecting license or a mining lease in respect of the areas in which- (a) no notification has been issued under Rule 58 or Rules 59 ; or (b) if any such notification has been issued the period specified in the notification has not expired, shall be deemed to be premature and shall not be entertained and the fee, if any, paid in respect of any such application shall be refunded.'
The argument of the learned counsel was that the State Government had issued a notification (Annexure K) dated March 9, 1967, notifying that an area of 8 square miles as per description given in the notification will be auctioned for the grant of a mining lease for the mineral limestone under Rule 20 of the Rajasthan Minor Mineral Concession Rules, 1959 that the State Government thus reserved the area mentioned for the purpose stated therein, and had refused to grant a mining lease to the fourth respondent on the ground that the land had been reserved, and that the .area of 200 acres could not be granted from out of the area so reserved, as the availability of the said area for grant of a mining lease was not notified following the procedure laid down in Rule 58. The learned counsel also argued that in the absence of such re-notification of its availability for a fresh grant, the order of the Central Government directing the grant of 200 acres to .the fourth respondent in pursuance of the application made by the fourth respondent was not valid, as the application had to be deemed to be premature and could not be entertained by reason of the provision in Rule 60.
(35) Aperusal of the provision in Rule 58 shows that it was not applicable as the area in question was not one of any of the categories mentioned in sub-rule (1) of the said Kule.
(36) As regards Rule 59, the argument was based upon the notification (Annexure K) issued by the State Government. By that notification, the State Government merely notified that the area mentioned therein would be auctioned in the manner and for the purpose stated therein. The language used in the notification seems to suggest that the Government merely indicated the manner in which it wasted to dispose of the area and does not seem to indicate that the State Government 'reserved' the area for the purpose mentioned therein. It is, thereforee, doubtful whether there was any reservation of the area within the meaning of Rule 59. Even assuming that there was such reservation, the provision in Rule 59 would not still be applicable. For the applicability 'of Rule 59(i) there must have been a land which was otherwise available for the grant of amining lease, (ii) the State Government must have refused to grant a mining lease in respect of that land on the ground that the land had been or should be reserved for a purpose, and (iii) the land should again become available for the grant of a mining lease. When the requirements (i) and (ii) are satisfied, the land has to be notified in the Official Gazette as being available for grant. It is only then that the requirement (iii) would satisfied. In the present case, the first requirement can betaken to have been satisfied as the area of 8 square miles was originally available for the grant of a mining lease. The second requirement also can be regarded as satisfied as the State Government refused to grant a mining lease to the fourth respondent on the ground that the area was 'reserved '(as assumed) for being auctioned under the Rajasthan Minor Mineral Concession Rules. Before the third requirement was satisfied, i.e. before the area become again available and was notified in the Official Gazette as having become available for grant, the very refusal by the State Government (second requirement) was reversed by the Central Government and a direction was given that a grant of a mining lease for 200 acres should be made in favor of the fourth respondent. The State Government carried out the said direction. There was thus no question of the area of 200 acres becoming again available for the grant of a mining lease within the meaning of the third requirement.
(37) Even at the cost of repetition, we may explain the position further. A plain reading of Rule 59 shows that it contemplates only a situation where-
(I)a land was otherwise available for the grant of a mining lease, (ii) but the Government refused to grant a mining lease, (iii) on the ground that the land was or should be reserved for any purpose, and (iv) such land has become again available for grant of a mining lease.
In such a situation, the Rule states that as soon as the land has become again available for grant of a mining lease, the Government shall grant the lease, after following the procedure of entering in the prescribed register and notifying in the Official Gazette as laid down in Rule 58. Rule 59 does not contemplate or provide for a situation as in the present case where the mining lease was granted at the stage (iii) itself (on the direction of the Central Government), and the stage (iv) of the land becoming again available for granting mining lease never came into being. Thus, in such a situation, i.e. where the mining lease was granted at the third stage itself, Rule 59 does not apply, and there is no other provision which requires the procedure laid down in Rule 58 to be followed before the granting of the mining lease. It has, thereforee, to be held that Rule 59 also was not applicable in the present case.
(38) As regards Rule 60, a perusal of the same shows that it applies only to cases covered by Rules 58 and 59, and since we have held above that Rules 58 and 59 were not applicable to the grant of mining lease in favor of the fourth respondent Rule 60 also has to be held to be not applicable.
(39) There is thus no force in the argument of the learned counsel that Rules 58, 59 and 60 were not complied with, as none of the said rules was applicable to the facts of the present case. The second contention of the learned counsel cannot, thereforee, be accepted.
(40) The third contention of Mr. Basi Reddy was that the order (Annexure H) passed by the State Government on January 10, 1073. as well as the Corrigenda (Annexures C and D) issued by the State Government on January 30, 1973, were also vitiated. Once the first two contentions are decided against the petitioner, this third contention would not arise, because the order, dated January 10, 1973, and the Corrigenda dated January 30, 1973, were only issued by the State Government pursuant to the order of the Central Government. The State Government was bound to give effect to the order of the Central Government, and there was no question of any further consideration by the State Government (vide Sree Ndravan Company v. State of Orissa (Para 5). There was, thereforee, no question of giving any opportunity to the petitioner by the State Government before issuing the aforesaid consequential order and Corrigenda. thereforee, the third contention also fails and has to be rejected.
(41) For all the above reasons, the Civil Writ Petition fails and is dismissed, but in the circumstances without costs.