Honble A. K. MATHUR, J.—This writ petition and the writ petitions mentioned in Schedule A appended to this order have been placed before this Division Bench on reference being made by Honble Mr. Rdjesh Balia, J. while disagreeing with the view taken by Honble Mr. V.K. Singhal, J. in Sadanand vs. State of Rajasthan (1). The following two questions have been framed by the learned Single Judge which read as under :

"1. Whether the power to relax a rule conferred on the Government under r. 65 of the Rules of 1986 also takes within it the power to substitute an existing rule with a new rule ?

2. Whether the State Government has authority under r. 65 of the Rules of 1968 to direct for charging of dead rent in a given case at rate different than the prescribed under the Rules, without amending the Rules itself?"

2. In order to understand the controversy raised in these writ petitions, the facts given in the case of Hari Singh Vs. State of Rajasthan (D.B. Civil Writ Petition No. 155/1990) are taken into consideration :

3. The petitioner by this writ petition has challenged the order of the State Government dated 24.5.1989 (Annex 7). whereby the State Government has issued an executive order directing that at the time of renewal of the mining lease for construction of brick kiln in Sri Ganganagar and Bikaner, the dead rent shall be charged not in accordance with the II Schedule but on the basis of the capacity of production of the brick kiln. This order is purported to have been issued by the Government in exercise of the powers conferred on it under Rule 65 of the Rajasthan Minor Minerals Concession Rules, 1986 (referred to hereinafter as the Rules of 1986). The petitioner was having 5.19 bighas of land in Square No. 83/12 in Chak 14 M.D. Tehsil Gharsand Distt. Sri Ganganagar. He applied for conversion of this land for establishment of a brick kiln and after necessary enquiry the Collector, Sri Ganganagar vide his order dated 25.3.1989 converted the land for establishment of brick kiln. After this conversion the petitioner applied on 27.3.1989 before the respondent No. 3 for the purpose of grant of mining lease. On 24 4.1989, the mining lease was granted to the petitioner. A copy of the same has been plaecd on record as Annex. 2. At the relevant time the dead rent amount was 4,516/which is evident from Item No. 7 of Annex 2 i.e. mining lease. After this, the petitioner by the letter dated 25.4.1989 was asked to deposit a sum of Rs. 1,129/- as advance ins alment of dead rent. The petitioner deposited the required amount of Rs. 1,329/- on 8.5.1989. The petitioner was granted on Short Term Permit after depositing the amount of Rs. 2,588/- for 1.25 bricks. He deposited the amount of Rs. 2.588/-. Then again he was given a Short Term Permit on 23.5.1989, 6.6.1989 and 24.6.1989. Thereafter, the petitioner was asked to appear in the office of the respondent No.12 on26.6.1989 for execution of the agreement. It is submitted that all the required formalities of submitting National Saving Certificates and stamps worth Rs. 830/- for the purpose of agreement were completed before 20.6.1989. The petitioner appeared in the office on 26.6.1989 in pursuance of the aforesaid letter. But the respondent No. 2 refused to execute the agreement and also refused to issue short term permit. The petitioner approached the Superintending Mining Engineer, Jodhpur. The petitioner asked to deposit Rs. 5,157/- for getting short term permit for 5 lacs bricks, which the petitioner deposited on 29.9.1989 and the petitioner was granted one short term permit for 1.25 bricks on 29.9.1989 and another short term permit on 17.10.1989 and then on 1.11.1989. The petitionei again deposited a sum of Rs. 5,175/- but he was refused further short term permit and the agreement was also not executed. The petitioner was told by the respondent No. 2 that the dead rent cannot be accepted in pursuance of the order of the State Government dated 24.5.1989 and same will be charged on the basis o

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