Full Judgment Text
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PETITIONER:
KALI PRASAD AGARWALLA & OTHERS
Vs.
RESPONDENT:
BHARAT COKING COAL LIMITED & OTHERS
DATE OF JUDGMENT31/03/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
OZA, G.L. (J)
CITATION:
1989 AIR 1530 1989 SCR (2) 283
1989 SCC Supl. (1) 628 JT 1989 (3) 170
1989 SCALE (1)852
ACT:
Coal Mines (Nationalisation) Act, 1973: ss. 2(h)(iv),
2(h)(vi), 3, 5 & 6--Land used for carrying on mining opera-
tions adjacent to a coal mine--Whether a mine--Whether
vested in Central Government-Owners right, title and inter-
est--Whether extinguished.
Practice and Procedure: Whether parties entitled to
retract from evidence let in.
HEADNOTE:
Section 3 of the Bihar Land Reforms Act, 1950 provided
for vesting an estate or tenure in the State. Section 2(h)
of the Coal Mines (Nationalisation) Act, 1973 defines a
’mine, to mean any excavation where any operation for the
purpose of searching for or obtaining minerals has been or
is being carried on. Sub-clause (iv) thereto includes there-
in all open cast workings and sub-clause (vi) takes in all
lands, buildings etc., in or adjacent to a mine and used for
the purposes of the mine. Section 3(1) provides for acquisi-
tion of rights of owners in respect of coal mines by the
Central Government. Section 5(1)empowers the Central Govern-
ment to direct vesting of the said rights in a Government
company. Section 6(1) refers properties vested in the Cen-
tral Government free from mortgages etc.
The appellants instituted a suit in respect of a large
expanse of land for declaration of their homestead right
thereto. The possession in the zamindari right was settled
to their ancestor in 1949. They, therefore, claimed owner-
ship of leasehold land.
The respondent Government-company resisted the suit on
the grounds, firstly, that the disputed land formed part of
a colliery which had vested in the Central Government and
thereafter in the company under the provisions of the Coal
Mines (Nationalisation) Act and secondly, that the interest
claimed by the plaintiffs, automatically stood extinguished
with the vesting of the estate of the plaintiffs’ lessor by
reason of the notification issued under s. 3 of the Land
Reforms Act.
The trial court negatived all the defences anti decreed the
suit.
284
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Reversing the said decree, the High Court held that the
lease granted to the plaintiffs was an encumbrance which was
annihilated with the issuance of the notification under s. 3
of the Land Reforms Act, and that the lease having thus come
to an end the plaintiffs had no title to be declared. It
further found that the salt lands were adjacent to a coal
mine and were being used for the purpose of the said mine.
Therefore, it held that the suit lands were more within the
meaning of the Nationalisation Act, and that what vests
under that Act is the mine and not .merely the interest of
the owner of the mine.
Dismissing the appeal,
HELD: 1.1 The evidence on record both for the plaintif-
fappellants and the defendant-respondents makes it evident
that the land was being used for the purpose of the mine for
carrying on the mining operations in respect of the part of
the seam lying immediately below the surface. There cannot
be any working mine without the surface being included in
that concept. If the surface does not form part of the
concept of mine, it is not possible to have any excavation.
Section 2(h)(iv) of the Coal Mines (Nationalisation) Act
includes open cast working within the definition of ’mine.’
[289E-F]
1.2 The suit land was also adjacent to a coal mine and
was being used for the purposes of the said mine, namely,
stacking of the coal and effecting local sale thereof. It
was therefore, a mine as defined under s. 2(h)(vi) of the
Act. [289G]
2. Under s. 3 of the said Act, the right, title and
interest of the owners in relation to the coal mines stood
transferred to and vested absolutely in the Central Govern-
ment free from encumbrances. It was immaterial whether the
mine belonged to the State or to a private party. The appel-
lant’s title to the said land, if any, thus stood extin-
guished. [289H; 290A]
State of West Bengal v. Union of India, [1964] 1 SCR
371, referred to.
3. The parties went to trial knowing fully well what
they were required to prove. They have adduced evidence of
their choice in support of the respective claims. That
evidence has been considered by both courts below. The
appellants cannot now turn round and say that the evidence
should not be looked into. This is a well accepted princi-
ple. [290C-D]
285
Kunju Kesavan v.M.M. Philip & Ors., [1964] 3 SCR 634,
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2647 of
1980.
From the Judgment and Order dated 24.4.1980 of the Patna
High Court in Original Decree No. 289 of 1979(R).
Shankar Ghosh, S .P. Lal and H.K. Puri for the Appellant.
L.N. Sinha, R.N. Sachthey and A. Sachthey for the Respond-
ents.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. This appeal by certificate
under Art. 133(1) of the Constitution is from a decision of
the Patna High Court which reversed the decree in the suit
filed by the appellant for declaration of title and confir-
mation of possession.
In the court of the Subordinate Judge, the First Court
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at Dhanbad, the plaintiff/appellants instituted a suit in
respect of Schedule B of the plaint for a declaration of
their homestead right thereto and for confirmation of pos-
session or in the alternative recovery of possession. The
suit property consists of 30 bighas, 18 kattar and 11 chha-
taks being part of plot nos. 59 and 70 in village Dhansar.
The plaintiff’s claim was based on a registered indenture of
lease dated December 9, 1949 by which it is said that the
possession in the Zamindari right of Kali Prasad was settled
to Ruplal Aggarwal, father of plaintiff No. 1 and grand-
father of plaintiff Nos. 2 and 3. The plaintiffs’ claim that
they have become the owners of the lease hold land and are
in possession of the same by exercising diverse acts of
possession, mutating their name and by payments of stipulat-
ed rents to the State of Bihar, who recognised the said
lease.
The defendant is a Government company called Messrs.
Bharat Coking Coal Limited (The Company). The Company re-
sisted the suit on three main grounds: firstly, that the
disputed land formed part of North Bhuggatdih Colliery which
had vested in the Central Government and thereafter in the
company under the provisions of the Coal Mines (Nationalisa-
tion) Act, 1973, secondly, that the interest claimed by the
plaintiffs automatically stood extinguished with the vesting
of the estate of the plaintiffs’ lessor, by reason of the
vesting notification
286
issued under sec. 3 of the Bihar Land Reforms Act, 1950.
Lastly, that actual lease of the land was taken much earlier
expressly for the purposes of the mines and that the instru-
ment of 1949 is contaminated with flaw and obtained with a
view to certifying the vesting of the estates in the State
of Bihar and even that on a misapprehension that the so-
called homestead land would. not vest.
The trial court negatived all the defences and decreed the
suit.
Upon appeal by the company, the Patna High Court re-
versed the decree of the trial court and dismissed the suit.
There are two main findings recorded by the High Court to
allow the appeal. As to the scope and effect of the provi-
sions of the Bihar Land Reforms Act, 1950 in respect of the
suit property, the High Court held:
"For the reasons indicated above, I
am of the view that a lease granted to the
plaintiffs in the instant case was an encum-
brance and it was annihilated with the issu-
ance of the notification under sec. 3 of the
Act. The submission urged on behalf of the
appellants, therefore, in this behalf must be
accepted. The lease of the plaintiffs having
come to an end consequent upon the issuance of
notification under sec. 3 of the Act, the
plaintiffs have no title to be declared and
the decree of the trial court is liable to be
set aside."
As to the nature of the suit property and
the scope and effect of the Coal Mines (Na-
tionalisation) Act, 1973, the High Court on an
appraisal of the oral and documentary evidence
led by both the parties said:
"I would, therefore, prefer their
positive evidence (referring to the defend-
ants/respondents evidence) than to the nega-
tive evidence adduced on behalf of the plain-
tiffs. It will, however, be seen that the suit
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lands are adjacent to a coal mine, namely,
North Bhuggatdih Colliery and were being used
for the purposes of the said mine, namely,
stacking of coal and effecting local sales
thereof. The conclusion is, therefore, ines-
capable that the suit lands are more within
the meaning of the Nationalisation Act. What
vests under the Nationalisation Act is the
mine and not merely the interest of the owner
of the mine."
287
Having regard to these findings, the High Court did not
find it necessary to examine whether the instrument of 1949
was a genuine transaction.
In this appeal, on the submission of counsel for both
sides, two questions arise for our consideration: (i) wheth-
er the suit lands had vested, free from encumbrance in the.
State consequent upon the issuance of Notification under
sec. 3 of the Bihar Land Reforms Act; and (ii) whether the
suit land is "mines" within the meaning of the Coal Mines
(Nationalisation) Act, 1973?
In our opinion, it is unnecessary to consider the first
question and indeed it is not proper also to consider the
question in the absence of the State which is a necessary
party for adjudication of that dispute. The State of Bihar
is not impleaded as a party to the suit and we, therefore,
refrain from expressing any opinion on the first question.
On the second question, the relevant provisions of the Coal
Mines (Nationalisation) Act, 1973 (The Act) may now be
noted.
"Section 2(h) defines "mines" to
mean any excavation where any operation for
the purpose of searching for or obtaining
minerals has been or is being carried on, and
includes
XXX XXX XXX XXX XXX
(iv) all open cast workings;
XXX XXX XXX XXX XXX
(vi) all lands, buildings, works,
adits, levels, planes, machinery and equip-
ments, instruments stores, vehicles, railways,
tramways and sidings in, or adjacent to, a
mine and used for the purposes of the mine;
XXX XXX XXX XXX XXX
(x) all lands, buildings and equip-
ments belonging to the owners of the mine, and
in, adjacent to or situated on the surface of,
the mine where the washing of coal obtained
from the mine or manufacture, therefrom, of
coke is carried on.
XXX XXX XXX XXX XXX XXX
288
Section 3, so far it is relevant, reads.
"(1) On the appointed day, the
right, title and interest of the owners in
relation to the coal mines specified in the
Schedule shall stand transferred to, and shall
vest absolutely in, the Central Government
free from all incumbrances .......... "
Section 5(1) reads as under:
"(1) Notwithstanding anything con-
tained in secs. 3 and 4, the Central Govern-
ment may, if it is satisfied that a Government
company is willing to comply, or has complied,
with such terms and conditions as that Govern-
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ment may think fit to impose, direct, by an
order in writing, that the right, title and
interest of an owner in relation to a coal
mine referred to in sec. 3, shall, instead of
continuing to vest in the Central Government,
vest in the Government Company either on the
date of publication of the direction or on
such earlier or later date (not being a date
earlier than the appointed day), as may be
specified in the direction."
Section 6(1) provides as under:
"(1) All property which vests in the
Central Government or in a Government company
under this Chapter shall, by force of such
vesting be freed and discharged from any
trust, obligation, mortgage, charge, lien and
all other incumbrances affecting it and any
attachment, injunction or decree or order of
any court restricting the use of such property
in any manner shall be deemed to have been
withdrawn."
Sections 8 to 10 in chapter III provide for payment of
compensation to owners of coal mines. Provisions under
Chapter IV of the Act deal with claims to be .made for
compensation and for disbursing the amounts payable to the
Owners of coal mines by Commissioner of Payments.
On behalf of the plaintiffs, 11 witnesses were examined
including plaintiff No. 1 himself. Most of the witnesses
have not made any relevant statement on the question of
location or user of the suit land.
289
However, Kanhaiya Lal Agarwal, witness No. 6 for the plain-
tiff stated, "The land is full of collieries on all the four
sides." Likewise Ram Briksha Viswakarma, witness No. 8 for
the plaintiffs has stated that the suit land is a fallow
land and no crop is grown on it and there is nothing except
the road in between the suit land and the North Bhagatdih
Colliery. The 9th witness of the plaintiffs B.K. Mukherjee,
who surveyed the locality and submitted a report stated:
"At the time of my inspection, the
defendants were removing the over-burdened
surface and then taking out coal and this is
called open cast working ..... I do not see
the quarry by Southern side of the leased coal
land but do not remember whose quarry was
there. There were coal all over the land but
it was after the burden of earth was
removed ..... The coal was being ,cut at the
depth of 25 from the surface. Adjoining the
quarry, the land was not for homestead pur-
poses."
The witnesses for the defendant company have specifical-
ly stated that the land in dispute constitutes the upper
layer of the coal lying beneath and above the surface. The
working of the mines is by open cast working system. When
the mining operations are carried on in the other parts of
the Seam, the land is being used for the various purposes
connected with the mining operations.
In the light of this evidence, the location of the suit
land and the uses to which it is put to are beyond doubt.
The land is being used for carrying on the mining operations
and it is adjacent to a mine. It is used for the purposes of
the mine for carrying on the mining operations in respect of
the part of the Seam lying immediately below the surface.
Apparently, there cannot be any working mine without the
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surface being included in that concept. If the surface does
not form part of the concept of mine, it is not possible to
have any excavation. Section 2(h)(iv) includes open cast
working within the definition of "mine".
Secondly, the suit land is also adjacent to a coal mine,
namely, North Bhagatdih Colliery and is being used for the
purposes of the said mine, namely, stacking of the coal and
effecting local sale thereof. It is, therefore, a mine as
defined under sec. 2(h)(vi) of the Act.
Under sec. 3 of the Act, the right, title and interest
of the owners in relation to the coal mines stand trans-
ferred to and shall vest abso-
290
lutely in the Central Government free from encumbrances. For
the purpose of acquisition and vesting, it is immaterial
whether the mine belongs to the State or to the plaintiffs.
In either case, the Act extinguishes the title. A Constitu-
tion Bench of this Court in State of West Bengal v. Union of
India, [1964] 1 SCR 371 has held that under Entry 44 of List
3 of the Seventh Schedule to the Constitution, Parliament is
competent to make a law for acquisition of property owned by
the State.
It was, however, urged for the appellants that there is
no proper pleading or issue for determination of the afore-
said question and the evidence let in should not be looked
into. It is too late to raise this contention. The parties
went to trial knowing fully well what they were required to
prove. They have adduced evidence of theft choice in support
of the respective claims. That evidence has been considered
by both courts below. They cannot now turn round and say
that the evidence should not be looked into. This is a well
accepted principle.
In Kunju Kesavan v. M.M. Philip & Others, [1964] 3 SCR
634, this Court has stated (as summarised in the headnote at
p. 637):
"The parties went to trial, fully
understanding the central fact whether the
succession as laid down in the Ezhava Act
applied to Bhagavathi Valli or not. The ab-
sence of an issue, therefore, did not lead to
a material sufficient to vitiate the decision.
The plea was hardly needed in view of the fact
that the plaintiff stated in his replication
that the "suit property was obtained as makka-
thayam property, by Bhagavathi Valli under the
Ezhava Act". The subject of exemption from
Part IV of the Ezhava Act, was properly raised
in the trial court and was rightly considered
by the High Court."
On the facts and circumstances of the case we cannot,
therefore, accept the contention urged for the appellant in
this regard.
In the result and for the reasons stated above, the
appeal fails and is dismissed. In the circumstances, howev-
er. we make no order as
to costs.
P.S.S. Appeal dis-
missed.
291