MADAN, J. - (1.) THIS special appeal has been preferred against the order of learned Single Judge of this court, dated 7. 11. 1983 in S. B. Civil Writ Petition No. 39/73, whereby the learned Single Judge observed that the only question which arises for consideration is as to what would be the deadrent for the period between 1972-77 for the mining lease in question which the appellant is supposed to pay the respondent. The learned Single Judge has observed in the impugned order that the petitioner had the alternate remedy of appeal available to him under Rule 43 (2) of the Rajasthan Minor Mineral Concession Rules, 1959 (hereinafter referred to as 'the Rules of 1959') framed under section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 which the appellant did not avail of. In that view of the matter the learned Single Judge was of the opinion that the contentions advanced by the learned counsel for the petitioner- appellant regarding the provision being ultravires, arbitrary discriminatory and violative of Article 14 of the Constitution of India, cannot be looked into. Consequently,the learned Single Judge disposed of the writ petition with no order as to costs.
(2.) BEING aggrieved by the aforesaid order, the appellant has preferred this appeal which came up for final hearing on the 3. 03. 1994. The case of the petitioner-appellant in brief, is that he was holding a mining lease for extraction of marble under the Rules of 1959 for an area of 4 sq. miles (approximately 10 sq. kilometers) near village Jillo, Tehsil Neem-ka-thana, District Sikar for a period of five years commencing from 17. 01. 1967 to 16. 01. 1972. The appellant applied for the renewal of the lease on the 24th Febraury, 1971 before the expiry of the said lease along with the necessary deposit fee. In his application, dated the 24th Frbruary, 1971 for renewal of the lease, the appellant apprised the State Government with regard to the royalty assessed and finalised by the Government and the dead rent which was paid as follows. S. No. 1 Year 2 Quantity of Marble Extracted 3 Royalty Assessed Rs. 4 Dead Rent Rs. 5 1. 17. 1. 67 to 16. 1. 68 2859 Tons 10006. 50 23. 508. 00 2. 17. 1. 68 to 16. 1. 69 3575 Tons 12509. 00 23,508. 00 3. 17. 1. 69 to 16. 1. 70 3363 Tons 11770. 00 23,508. 00 4. 17. 1. 70 to 16. 1. 71 1950 Tons 6,825. 00 23. 508. 00 During the course of hearing Shri G. K. Garg, learned counsel for the appellant, advanced the arguments by challenging Rule 16 (b) of the Rules of 1959 as ultra vires of the Constitution and being violative of Article 14 of the Constitution of India. His contention was three fold. (i) That no opportunity of hearing was provided to the petitioner appellant before increase of deadrent/lease money which was double of the deadrent originally charged i. e. from Rs. 23,508. 00 per annum to Rs. 47. 016. 00 per annum vide Government order, dated the 14. 11. 1972 which was received by the appellant on 17th November,1972. (ii) That the petitioner-appellant had been discriminated qua other lessesees who were similarly placed and in their case no such increase was done, (iii) That in absence of opportunity of hearing before the increase of lease money, principles of natural justice have been violated. It was further contended by the learned counsel for the appellant that on the 1st January 1973 the appellant had submitted an application before the Government for renewal of the lease confined to the area of 2 sq. miles measuring 384 acres and that remaining area of 1 sq. mile measuring 256 acres be accepted as surrendered with regard to which the petitioner-appellant had submitted the plans and demarcation reports. It is further the case of the appellant that on 2. 01. 1973 he was provided with an opportunity of hearing by the department on the direction of Hon'ble Minister with reference to his representation and that the appellant had appeared before the concerned authority though his counsel as well as his attorney Shri Shiv Dayal. This fact is clearified in para 19 of the writ petition wherein the appellant has made specific averment to the said effect. From the perusal of paragraph 20 of the writ petition it becomes abundantly clear that the appellant had voluntarily and of his own accord accepted the aforesaid position, since he had not agreed to surrender part of the area in question but had also felt satisfied with regard to the necessary formalities to be completed by him in furtherance of the execution of the formal agreement. After the expiry of first lease period, the petitioner had applied for second renewal by his application, dated 3rd January 1977 addressed to the Secretary, Mining Department, Government of Rajasthan, Jaipur stating that he may be informed about the renewal of the mining lease by 16th of January, 1977. It is further contended by the petitioner-appellant that since he had not received any information from the respondent regarding the renewal of lease, he stopped paying lease charges and mining operation w. e. f. 17th of January, 1977.
(3.) WE have given our thoughtful consideration to the matter at issue and the contentions advanced by the learned counsel for the parties. In our opinion, the petitioner-appellant having accepted the position by paying lease money as originally fixed and also being fully aware of the implications of the agreement and the renewal charges which will be double the original lease money in case of first renewal, it is not open to the appellant by any stretch of imagination, to contend at a later stage that he is the non-suited, since the lease money is in excess of the original rent. In our view, the principle of estoppel is fully attracted to the facts of the case and the petitioner-appellant cannot be permitted to reprobate and approbate at the same time for the simple reason that he had been enjoying the benefit of the mining lease for a long period. It is not his case that any body had forced the appellant to continue with the mining lease by paying lease money or the renewal charges at his own whims and fancies. The contention of the appellant that he was not provided with any opportunity of hearing by the respondent stands belied by his own averment made in para 19 of the writ petition wherein full opportunity of hearing was provided to the petitioner-appellant by the respondent, hence there is no violation of principles of natural justice. He was not only heard fully by the respondent but his representation was also considered and rejected. All this shows that there was proper application of mind by the respondent and since it was not possible to accede to his request, the petitioner's representation was rejected, as would be clear from para 22 of the writ petition, the petitioner-appellant's requests for renewal of lease and the alternative threat of stopping the mining operation was entirely voluntary at appellant's, own volition and that nobody had forced the appellant to continue with the mining lease. It is purely a contractual obligation which the appellant had failed to fulfil and in absence of deposit of renewal charges for availing the facility of mining lease, it does not give any legal or statutory right to the appellant to challenge the same before this court by invoking the writ jurisdiction of this court under Article 226 of the Constitution of India. A perusal of the relevant correspondence and the documents on the record fully show that the appellant at his own accord had agreed for stopping the mining operations with effect from 17. 01. 1977 and had conveyed the same to the Asstt. Mining Engineer, Sikar on 20. 01. 1977. Hence, the appellant by his own conduct, act and acquiscence is now estopped and precluded from pleading to the contrary. ;