BHANDARI, J.—This is a Writ petition under Art. 226 of the Constitution.

2. A lease for stone quarry No. 1119 in Fidusar area, Tehsil Jodhpur, was granted to the petitioner on 28th April, 1964, by the Mining Engineer, Jodhpur. Shrimati Kaushaliya Devi, respondent No. 2, filed an appeal against the aforesaid order to the Director of Mines and Geology. The appeal was dismissed on 18th June, 1964. Respondent No. 2 preferred an appeal to the Government of Rajasthan, Jaipur, under R. 43(2) of the Rajasthan Minor Mineral Concession Rules, 1959 (hereinafter called the Rules). This appeal was heard by the Secretary to the Government of Rajasthan, Industries and Mines Department. On 13th January, 1966, he submitted a note for approval to the Minister Incharge of that department stating therein that the lease of the quarry in question be granted to Shrimati Kaushaliya Devi as her application was received earlier than that of the petitioner. In the note he took notice of the arguments addressed by counsel for the parties. On 26th January, 1966, the Minister Incharge signed the note thus signifying his approval thereof.

3. In compliance with the aforesaid order, instructions were sent to the Director of Mines and Geology vide Ex. 4, a copy of which was sent to the petitioner. On receiving a copy of Ex. 4, the petitioner has filed this writ petition and the main ground taken by him in this writ application for challenging the order of the State Government is that the Secretary of the Industries and Mines Department had no authority to give a hearing of the appeal and that the Minister Incharge of the department decided the appeal without giving a hearing.

4. Notice of the writ petition was given to the State of Rajasthan and to Shrimati Kaushaliya Devi, respondents Nos. 1 and 2 respectively. The reply filed by the State of Rajasthan is not very clear but the position taken up by the learned Deputy Government Advocate during the course of the arguments is that the Dy. Minister, Industries and Mines Department, had passed an order that the Secretary may hear and dispose of the appeal, and in pursuance of that order, the Secretary had heard and disposed of the appeal on 13th January, 1966.

5. It is to be examined in this case whether the Deputy Minister could have passed an order authorising the Secretary to hear and dispose of the appeal and if he could, whether the Secretary can be said to have disposed of the appeal by his order dated 13th January, 1966.

6. Under the Rules, an appeal lies to the Government as R. 43(2) provides that any person aggrieved by any order passed by the Director in appeal under sub-rule (1) shall have the right of appeal to the Government. Under sub-rule (4) of R. 43, it is provided that the orders passed by the Government under appeal shall be final. Under R. 46, the procedure for hearing and disposing of the appeal has been provided. R. 46 runs as follows—

"46. Procedure of appeal—(1) Upon receipt of Memorandum of appeal satisfying requirements of R. 44 the appellate authority shall fix a date for hearing. It may, if it thinks fit, call for the relevant records and other information from the officer whose orders are the subject of appeal.

(2) The appellate authority may confirm or modify the order under appeal after giving the appellant an opportunity of hearing and considering any comments that might be offered by the officer who gave the order under appeal."

Under R. 46, it is incumbent upon the appellate authority to fix a date of hearing. It is further incumbent on it that it should afford an opportunity of hearing to the appellant.

7. Who is to hear and dispose of the appeal is to be gathered from the Rules of Business made under Art. 166 of the Constitution by the Governor of the State of Rajasthan. R. 4 provides that the business of the Government shall be transacted in the Secretariat Department specified in the First Schedule and shall be classified and distributed between those departments as laid down therein.

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