P.K.BANERJEE,C.J. - (1.)IN this rule, the petitioner has challenged Exs. 7, 8 and 9 of this petition by which the order of allotment of the quarry in favour of the petitioner was set at naught and non -petitioner No 4 was allotted the quarry.
(2.)THE case made out in the petition of the petitioner is that the petitioner applied before the State Govt, for allotment of the quarry being No. 909 on 22 -11 -1966 and the order was made soon thereafter. Appeal was taken by respondent No. 4 to the State Government and the State Government by an appellate order remanded the case back to the authorities concerned. or the purpose of considering whose application was prior, whether the petitioner's or respondent No 4's It was subsequently found that the application by respondent No. 4 was made on 17 -11 -76 and the petitioner herein made the same on 22 -12 -76. It was the argument of Mr. Joshi and it is admitted that respondent No. 4's application was not on the record, but all the tribunals below held that respondent No. 4 did file an application on 17 -11 -66 as is quite clear from the receipt granted by the Tehsildar, Mines, in so far as respondent No. 4 is concerned. It is now slated by the petitioner that the Mining Engineer allotted the same quarry No. 909 to respondent No. 4 on 17 -9 -68 and notice was pasted on the notice board of the office of Mining Engineer, Jodhpur, along with all allottees of different quarries and there was a stipulation that if anybody has any objection, the same may be filed within thirty days before the Mining Engineer and as such, the allotment was provisional according to the petitioner. The petitioner filed objections on 13 -9 -68 stating therein that the application of respondent No 4 was not presented in the office prior to the application of the petitioner and charges of manipulation and malafides are levelled as against non -petitioner No. 4 and the office. I am not, however, concerned with these disputed questions of fact. It appears further that the petitioner received letter stating that the order of quarry No. 909 was made in favour of the petitioner on 17 -11 -1970. There -after, the petitioner deposited Rs. 200/ - for two years and Rs. 250/ - on 18 -11 -70. It is admitted position that the petitioner did not execute any document for the mining lease up ail now. It is also the case of the respondent that he did get the allotment in 1968 and executed deed of mining lease and working the mine from the date when the allotment was made. The State Government represented by Mr. Calla contended that the allotment was made in favour of respondent No 4 and not in favour of the petitioner in respect of quarry NT. 909 and respondent No. 4 is in possession of the quarry and is paying the rent cum royalty to the Government. On the basis of these, the parties came to trial.
Mr. Joshi, on behalf of the petitioner, contended, inter alia, that the lease is to be executed by the department and for the latches of tie department, the petitioner cannot be held liable. In my opinion, lease is a document which both the parties have to execute. If the allotment was made, it was fit and proper that lea: e should be executed. Under Rule 47 of the Rajasthan Minor Mineral Concession Rules, 1959 (here in after referred to as 'the Rules'), no person -can undertake any mining operations except or in accordance with the terms and conditions of the Mining Lease, Rent cum -Royalty lease, short term permit granted under these rules. Under Rule 47(2) the lessee o any other person cannot remove minerals without ravana in Form No. 1 attached to these rules duly sealed and signed by the Department of Mines and Geology. Contravention of Rule 47(1) is punishable for six months or with fine to the extent of Rs. 1000/ - on both. From the reading of Sub -rules (1), (2) and (3) of Rule 47, it is very difficult to accept Mr. Joshi's contention that the execution of a lease by the lessee is only directory. On the other hand, from Rule 32, it is clear that the conditions of rent -cum -royalty lease shall be those contained in model agreement form given in Schedule IV. It is also quite clear from Rules 20 and 21 reading together with Rule 18 that after the bid is accepted and lease has been granted under Rule 11 the formal lease in form given in Schedule IV has to be executed within one month from the date of receipt of the sanction by the applicant and if no such formal lease is executed within the aforesaid period the order granting the lease shall be deemed to have been revoked. From this, it is quite clear that without execution of the lease deed, the lease will stand revoked provided that the State Government or any officer au horised by the State Government to grant lease is satisfied that the applicant for lease is not responsible for the delay in the formal lease being executed. But that is not the case here. In my opinion, therefore, it cannot be argued that even without execution of the lease, the petitioner having got posssession, lease need not be executed and the provisions for execution of lease is directory. Mr. Josbi contended that assuming no lease was executed, the petitioner having possession, it cannot be revoked without giving an opportunity of showing cause. The snag in the argument is that both the parties state that they are in possession of the quarry. Moreover, it is stated by Mr. Parekh in affidavit that they have been in possession in 1972, executed the lease and are working the mine even upto 1980 and have been working it. Of course it has been stated that the petitioner has already paid royalty etc. upto 1976 there is no doubt. Mr Joshi however, contended that his client is working the mines, though he has no paid anything apart from Rs. 200 paid in 1970, In view of these disputed questions of fact, in my opinion, this question of possession canot be decided in proceedings under Article 226. But I am of the opinion that in a stay application, status quo as on that day in 1976 was maintained by this Court and respondent No. 4 has stated before me that he is in possession. The petioner, however, contended that nobody is in possession, he has not asserted that he is in possession of the quarry. In the circumstances, therefore, status quo must be held in favour of respondent No. 4 who is said to be in possession. The petitioner not being in possession, the question of evicting him from the quarry in question cannot and does not arise. Nun be; of cases have been cited at the bar by the petitioner but in the view I have taken, it is not necessary for me to discuss them. It is stated, however, by Mr. Joshi that the petitioner was in possession and, therefore, rules of natural justice require that a hearing should be given before he is ousted. As I have already said about possession which is disputed very much and cannot be decided here, the question does not very much arise.

(3.)THE last question which is mooted at the Bar is that the petitioner applied before respondent No. 4. I have already said that 17 -11 -66 is the date of the application of respondent No. 4 and the petitionre's application was dated 22 -12 -66 and, therefore, the respondent No. 4's application was prior to that of the petitioner. The respondent No. 4's application is not on the record and the petitioner's application is there but respondent No. 4's application finds reference in the judgments of the tribunals below and it has now been proved under question of fact that respondent No. 4 did make an application on 17 -11 -66 and got the receipt of the Tehsildar, Mines on that date. In the circumstances, therefore, it must be held that the application of respondent No. 4 was made prior to that of the petitioner. The rule must therefore, stand discharged without any order as to costs and I order accordingly.