Full Judgment Text
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PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
M/S. KHAS KARANAPURA COLLIERY LTD.
DATE OF JUDGMENT:
15/04/1968
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
BACHAWAT, R.S.
CITATION:
1969 AIR 125 1968 SCR (3) 784
CITATOR INFO :
D 1971 SC2177 (7)
ACT:
Constitution of India, 1950, Art. 226--Jurisdiction of court
to deal with question not specifically raised in writ
petition--Land of lessee for winning coal notified under s.
4(1) of Coal Bearing Areas (Acquisition and Development) Act
(20 of 1957)--If lessee aggrieved--Writ petition filed about
5 months after issue of notification--If amounts to laches.
HEADNOTE:
The respondent was a lessee of 1401 bighas of land and was
carrying on mining operations on the land for winning coal.
On 9th October
1963, the appellant-Government issued a notification under
s. 4(1) of the Coal Bearing Areas (Acquisition and
Development) Act, 1957, giving .notice of the Government’s
intention to prospect for coal in, 1200 bighas of the
leasehold land. These 1200 bighas covered land, on which,
amongst other buildings, a railway siding, boiler rooms,
office rooms, fan house and air shaft premises were situate.
On 23rd March 1964, the respondent filed a writ petition in
the High Court challenging the notification as contravening
s. 4(4) of the Act and the High Court quashed the
notification.
In appeal to this Court,
HELD : (1) In the premises notified, processes ancillary to
the getting, dressing or preparation for sale of coal
obtained as a result of the mining operations were being
carried on, and therefore the impugned notification violated
the second limb of s. 4(4) and was invalid. [787 D-E]
(2) Though no specific case under the second part of s.
4(4) was pleaded in the writ petition, all the facts
necessary for determining the question were before the Court
and the matter was fully argued in the High Court without
any objection. Therefore, it could not be urged that it was
open to this Court to consider that aspect of the case. [787
F. 788 A]
(3) Under s. 5 of the Act the effect of the notification
was to require the respondent to bring to a halt all his
operations in the notified area till action was taken under
s. 7 or till the period prescribed in that ,Section came to
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an end. Therefore, the respondent was aggrieved by the
impugned notification. [787 B]
(4) The delay in filing the writ petition was not
sufficient to refuse relief to the respondent. [786 G]
(5) If the notification was invalid, it is not for this
Court to decide whether any other area of the leasehold
could have been notified. [788 B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 332 of 1965.
Appeal from the judgment and decree, dated October 30, 1964
of the Patna High Court in Misc. Judl. Case No. 643 of
1964.
Syed Mohammed and S. P. Nayar, for the appellant.
785
A. K. Sen, S. C. Banerjee and A. K. Nag, for the respondent.
The Judgment of the Court was delivered by
Hegde, J--In this appeal by certificate the question for
decision is whether the High Court of Patna was correct in
its conclusion that the notification No. S. 0. 2991 issued
by the Union Government on October 9, 1963 under s. 4(1)* of
the Coal Bearing Areas (Acquisition and Development) Act,
1957, (No. 20 of 1957)-hereinafter called "the Act" is
violative of sub-s. (4) of that section.
The facts of the case fall within a narrow compass. The
respondent, Khas Karanpura Colliery Limited, took on lease
1401 bighas of land in mouza sale in the district of
Hazaribagh as per a registered lease deed of July 8, 1949
for the purpose of winning coal. Thereafter it commenced
working the colliery in 1952. Certain seams were opened up.
Electric transmission lines were put up, staff quarters,
office-quarters, houses for labourers, hospital, school etc.
were built. For the purpose of despatching the coal, a
separate railway track was constructed and a railway siding
built. These works were completed long before the impugned
notification was issued. Under the notification in question
1200 bighas of land were notified with a view to
acquisition, which included areas on which the railway
siding, staff quarters, boiler house, houses for labourers
etc. were constructed.
The respondent, challenged the validity of the said
notification in MJC No. 643 of 1964--an application under
Art. 226 of the Constitution-before the High Court. The
main contention taken in the, writ petition was that the
notification in question contravenes sub-s. (4) of s. 4. The
High Court accepted that contention and quashed the
notification.
The material facts are more or less admitted. Along with
its writ petition the respondent produced a plan of the
colliery showing therein the railway track, the railway
siding, labour quarters, office premises and various other
buildings put up on the land. It had also shown therein the
actual places where muning operations were carried on. The
correctness of this plan has not been
(*) "4 (1) Whenever it appears to the Central Government
that coal is likely to be obtained from land in any
locality, it may, by notification in the Official Gazette,
give notice of its intention to prospect for coal therein.
(2)
(3)
(4) In issuing a notification under this section, the
Central Government shall exclude therefrom that portion of
any land in which coal mining operations are actually being
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carried on in conformity with the provisions of any
enactment, rule or order for the time being in force or any
premises on which any process ancillary to the getting,
dressing or preparation for sale of coal obtained as a
result of such operations is being carried on are situate."
786
disputed. From that plan it is seen that in a considerable
portion of the land notified under s. 4(1) there are
premises on which processes ancillary to the getting,
dressing or preparation for sale of coal obtained as a
result of the mining operation are being carried on. There
is also no doubt that if the respondent is deprived of the
benefit of those premises it would be difficult, if not
impossible for it, to continue to work the colliery.
The High Court has come to the conclusion that the area in
which coal mining operations is being actually carried on,
one is not to take into consideration merely those spots
where actual digging is going on, but also areas which are
sufficient to constitute a commercial or economic unit, and
if so viewed, the entire leasehold may ’be justifiably
considered as areas on which coal mining operations are
actually being carried on. Alternatively, it held that the
entire notified area had to be excluded because in parts of
that area mining operations are actually being carried on
and in the remaining parts there are premises, on which
processes ancillary to the getting, dressing or preparation
for sale of coal obtained as a result of the mining
operations are being carried. In other words the entire
area is exempt from being notified under s. 4 ( 1 ) either
because it is protected by the first part of s. 4 (4) or by
its second part. These conclusions were challenged before
us. It was urged on behalf of the appellant that the words
"any land in which coal mining operations are actually
carried on" found in the first part of s. 4(4) do not permit
of a liberal interpretation so as to bring in the conception
of a commercial or economic unit; they merely mean the
actual area where mining is taking place. As regards the
alternative conclusion based on the second part of s. 4 (4)
it was urged that on the pleadings there was no occasion for
the High Court to consider Whether the requirements of that
part are satisfied. In addition, two other contentions were
advanced on behalf of the appellant. They are : (i) no
relief under Art. 226 should have been given as the
respondent was guilty of laches, and (ii) the writ petition
was premature. We are in agreement with the High Court that
there is no substance in the last two contentions advanced
on behalf of the appellant. As seen earlier, the impugned
notification was issued on October 9, 1963 and the writ
petition was filed on March 23, 1964, well within six
months--the date of the notification. This delay is not
sufficient to refuse the relief prayed for.
In support of the contention that the petition was
premature, Dr., Syed Mohemmad, learned counsel for the
appellant, urged that the respondent has no real grievance
yet, as only a notification under s. 4(1) had been issued;
further proceedings are yet to take place, and the
respondent can be aggrieved only when a notifica-
787
tion under section 7 this issued. We think that this
contention is misconceived. As soon as the notification
under s. 4(1) was issued, in view of s. 5* the mining lease
granted in favour of the respondent ceased to have effect
for so long as that notification was in force. The effect
of that notification was to require the respondent to bring
to a halt all his operations in the area notified till
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action was taken under s. 7 or till the period prescribed in
that section came to an end. Hence it cannot denied that
the respondent was seriously aggrieved by the impugned
notification.
This takes us to the remaining two contentions noticed
earlier. It was strenuously argued by Dr. Syed Mohammed
that s. 4(1) empowers the Government to notify all lands
excepting those in which coal mining operations are actually
being carried on; the notification in question has excluded
201 bighas in which mining was actually carried on; hence
there is nothing illegal in that notification. He wanted us
to construe the words "any land in which coal mining
operations are being actualy carried" strictly. The High
Court has rejected this contention after taking into
consideration the purposes of the Act, its preamble and the
various provisions therein. But we have not thought it
necessary to go into that controversy as in our opinion the
impugned notification definitely violates the second limb of
s. 4(4) and hence it is invalid. It covers land on which
amongst other buildings, railway siding, boiler-rooms,
office room, fan house and air shaft premises are situate.
It cannot be denied that in, these premises processes ancil-
lary to the getting, dressing or preparation for sale of
coal obtained as a result of the mining operations are being
carried on. This conclusion of ours is resisted on the plea
that in the writ petition no specific case is pleaded under
the second part of sub-s. (4) ’of s. 4 and therefore it is
not open for us to consider that aspect of the case. We are
unable to accept this contention. It is true that
(*) "7. (1) If the Central Government is satisfied that
coal, is obtainable in the whole or any part of the land
notified under sub-section (1) of section 4, it may, within
a period of two years from the date of the said notification
or within such further period not exceeding one year in the
aggregate as the Central Government may specify in this
behalf, by notification in the Official Gazette, give notice
of its intention to acquire the whole or any part of the
land or of any rights in or over such land, as the case may
be.
(2) If no notice to acquire the land or any rights in or
over such land is given under sub-section (1) within the
period allowed thereunder, the notification issued under
sub-section (1) of section 4 shall cease to have effect on
the expiration of three years from the date thereof"
(*) "5. On the issue of a notification under sub-section
(1) of section 4 in respect of any land-
(a) any prospecting licence which authorises any person to
prospect for coal or any other mineral in the land shall
cease to have effect; and
(b) any mining lease in so far as it authorises the lessee
or any person claiming through him to undertake any
operation in the land, cease to have effect for so long as
the notification under that sub-section is in force."
788
the pleadings on this point are rather vague; but all the
facts necessary for determining that question are before the
court. That aspect of the case appears to have been fully
argued before the High Court without any objection. The
High Court has considered and decided that question. Hence
the appellant cannot now be permitted to contend that for
want of necessary pleadings that question cannot be gone
into. If areas in which those premises are situate could
not have been notified under s. 4 (1) as in our judgment
they could not have been-it is not for us to decide whether
any of the other areas included in the lease-hold could have
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been notified; we cannot make out a new notification for the
appellant.
One other contention was vaguely touched at the hearing of
the appeal, and that was that though there are ten seams in
the colliery only four seams are at present worked after
obtaining the necessary permission, the remaining six seams
are not yet opened up for the working; hence those seams
cannot be said to-have been worked on the date of the
notification. Mr. A. K. Sen, learned counsel for the
respondent, urged that all the ten seams were being worked
in conformity with the provisions of law. According to him,
once permission is obtained for grading the coal in a seam
and he says that such permission had been obtained in
respect of all the seams, in law it means that those seams
are being actually worked. We need not go into this
question in view of our earlier conclusion. At the hearing
reference was made to the decision of this Court in Messrs.
Burrakur Coal Co. Ltd. v. Union of India(.). The rule laid
down in that case does not bear on any of the issues arising
for decision in this appeal.
For the reasons mentioned above, this appeal fails and is
dismissed with costs.
V.P.S.
(1) [1962]1 S.C.R. 44.
Appeal dismissed.
789