Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
PETITIONER:
M/s. HINDUSTAN STEEL LIMITED, ROURKELA
Vs.
RESPONDENT:
SMT. KALYANI BANERJEE AND OTHERS
DATE OF JUDGMENT04/12/1972
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
GROVER, A.N.
CITATION:
1973 AIR 408 1973 SCR (3) 1
1973 SCC (1) 273
CITATOR INFO :
R 1976 SC2520 (17,22)
ACT:
Bihar Land Reforms Act-Sec. 10-Effect of on the existing
leases Whether the petitioners had become lessees of the
Govt.-Whether the controller of mining leases can terminate
the original lease before the expiry of the term.
Constitution of India, Art. 226-Disputed questions regarding
title to property-Whether can be raised in a petition under
-Art. 226.
HEADNOTE:
The original proprietor of an Estate granted a mining lease
to one Pran Chatterjee in 1919. Chatterjee assigned his
interest to one Mukherjee in 1937. The original petitioners
before the High Court as heirs and successors of Mukherjee
granted a sub-lease to one Rungta in, 1951. In 1955 the
Estate vested in the State of Bihar under Lands Reforms Act
1952. In- 1959, the Controller of Mining Leases in exercise
of the powers under Rule 6 of the Mining Lease (Modification
of Terms) Rules 1956 passed an order making lease of 1919
terminable on 20th September 1961. After issuing of royalty
Rungta for his failure to pay the arrears of royalty, the
lease of the part of the Estate was granted to the
appellant. On the Writ Petition filed by the heirs and
successors of Mukherjee, Patna High Court. cancelled the
lease in favour of the appellant. On the appellant’s
contention that the State of Bihar could validly terminate
the original lease and grant a mining lease to the appellant
and further that the original proprietor had no proper title
and since the title itself was in dispute, no Writ petition.
would lie,
Allowing the appeal,
HELD : That by virtue of Sec. 10 of the Bihar Lands Reforms
Act, 1950 the original lessees had become the lessees of the
State Govt. and the said Act does not put an end to the
title of the original petitioners. The controller of
Mining Lessees had no authority in law to terminate the
lease. [6D]
Bihar Mines Ltd. v. Union of India, A.I.R. 1967 S.C. 887
followed.
Held further, that the petition raised disputed question of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
title and the petitioners had failed to produce clear
conclusive and unimpeachable documentary evidence to prove
the title of the original proprietor, and hence the Writ
petition Was not competent [13 C-D]
Sohan Lal v. Union of India [1957] S.C.R. 738 relied upon.
Mohd. Hanit v. State of Assam [1969] 2 S.C.C. 782
distinguished.
Further held, that the entries in the village record of
rights (Register were not conclusive evidence on the point
of title. [10D]
Lodna Colliery Company (1920) Ltd. v. Bhola Noth Roy, All.R.
1964 S.C. 918, Nirman Singh & Ors. v. Lal Rudra. partab
Narairo Singh & Ors. 53 I.A. 220 and Sri Marudaswarar Temple
v. Dhanalakshmi Ammal 2-L63ISup.C.I./73
2
and Ors. Civil Appeal No. 236 of 1961 judgment delivered on
January 10, 1963 referred to.
JUDGMENT:
CIVIL APPELLATE.JURISDICTION : Civil Appeal No. 1787 of
1971.
Appeal by certificate from the judgment and order dated Sep-
tember 17, 1971 of the Patna High Court in Civil Writ
Jurisdiction case No. 740 of 1968.
L. N. Sinha, Solicitor-General of India, Santhosh
Chatterjee and G. S. Chatterjee for the appellant.
V. S. Desai and N. R. Khaitan for the respondent Nos. 1 to
3
U. P. Singh for the respondent Nos. 4 to 6.
The Judgment of the Court was delivered by
MUKHERJEA, J.-This appeal with leave is directed against a
judgment and order of the High Court of Patna in connection
with a writ petition of respondents Nos. 1 to 3 (who will
herein after be referred to as the "petitioners by which the
High Court quashed and cancelled two leases granted by the
State of Bihar in favour of M/s. Bharat Marble Company, a
partnership firm and the present appellant M/s. Hindustan
Steel limited. The facts and circumstances out of which the
petition arose are as follows.
By a registered document dated 11 July 1919 one Kumar
Amardeyal Singh, who was the proprietor of Ladi Estate at
the relevant time granted a lease in favour of one Pran
Kristo Chatterjee. The lease which gave a perpetual
Mokarari Settlement was in respect of various minerals
including iron ore and related to a large tract of land in
District Palamau covering an area of 2227 acres in village
Adar and 1303 acres in village Gore. Both the two villages
Adar and Gore appertained to Kumar Amardeyal Singh’s estate,
bearing Touzi No. 130, Survey No. 143 and Touzi No. 161,
Survey No. 91 respectively of the Collectorate of Palaman.
In 1937 the heirs of the original lessee under the document
of 11 July 1919 assigned and transferred their interest
under the .lease to one Vyomkesh Mukherjee. In 1949,
Vyomkesh Mukherjee died leaving behind the petitioners as
his heirs and successors. On 21 September 1951 the
petitioners granted a Sub-lease under the aforesaid lease of
11 July 1919 to one Madan Gopal Rungta. The latter,
however, was obstructed in his working of the mines under
the Sub-lease by the Deputy Commissioner of Palamau in
December, 1952. On 16 April 1953 Madan Gopal Rungta entered
into an agreement by which he agreed to pay royalty to
Government of Bihar for working the mining rights covered by
the Sub-lease. In January, 1955 the whole of Ladi Estate
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
vested in the State of Bihar under the Bihar Land Reforms
Act, 1950.
3
In 1959 the Controller of Mining Leases initiated a case for
the modification of the terms of the lease dated 11 July
1919. On 28 September 1959 after hearing the petitioners
and also after hearing Madan Gopal Rungta who held a power
of attorney on behalf of the said petitioners, the said
Controller in purported exercise of his powers under Rule 6
of the Mining Lease ’Modification of Terms) Rules, 1956
modified the lease under the aforesaid registered document
of 11 July 1919 and made it terminable with effect from 20
September 1961. It is, stated on behalf of the appellant
that this order of termination was made at the instance of
Madan Gopal Rungta who pleaded that the lease should be made
terminable after the expiry of the sub-lease granted in his
applications for grant of mining leases in respect of Gore
in the Official Gazette. On 10 September 1962 Madan Gopal
Rungta and his son Tribeni Prasad Rungta both applied for
grant of a mining lease of the area. Certain other
parties had also applied for mining lease in the area
prior to this stage. On 13 November 1962 a notice
was issued to Tribeni Prasad Rungta under Sec. 7 of the
Bihar and Orissa Public. Demands Recovery Act demanding a
sum of Rs. 66,317.93 by way of dead rent and royalties which
are alleged to have accrued during the period when Madan
Gopal Rungta was working the mines under the aforementioned
sub-lease. On 1 April 1963 the appellant M/s. Hindustan
Steel Limited applied for the grant of mining lease for an
area of 67.26 acres within the area. Some time in 1963
Tribeni Prasad Rungta made an application under Art. 226 of
the Constitution of India challenging the certificate
proceedings mentioned before and the High Court
allowed the application and quashed the proceedings on 23
November 1964. On 22 July 1965 the Government of Bihar
acting with the approval of the Central Government granted a
november 1966 a lease was granted in favour of Bharat Marble
Company. On 2 September 1968 one S. K. Jain purporting to
act on behalf of the petitioners filed a writ petition ’in
the High Court of Patna in which it was. prayed that the two
leases in favour of the appellant and Bharat Marble Company
should be quashed and can celled. Soon after this writ
petition had been filed, in April 1970, one of the
petitioners died. On 17 September 1971 the High Court
granted a writ in favour of the petitioners before them and
cancelled the two leases. M/s. Hindustan Steel Limited have
now come on appeal against the judgment and order of
the Patna High Court by which the two lease were cancelled.
The petitioners trace their title to the lease granted by
Kumar Amardeyal Singh in favour of Pran Kristo Chatterjee
who in turn
4
assigned his, right to the petitioners’ , predecessor-in-
title. claim that their predecessor-in-title Vyomkesh
Mukherjee had exercised his rights under the deed of
assignment and had in fact raised iron ore until 1949 when
he died. The petitioners claim have remained in possession
of the lease-hold property when interest of the proprietor
vested in the State of Bihar under Bihar Land Reforms Act,
1950 and they became the lessees in the State of Bihar on
the same terms and conditions as were contained in the
original lease of 1919. The order of the Control of Mining
Leases is, according to the petitioners, completely illegal
and null and void. The Government of Bihar, they contend
acted illegally in inducting the present appellant as lessee
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
of property which forms a part of the original lease-hold
property 1919. It was on this basis that the petitioners
asked the High Court to quash the two leases granted by the
Government of Bihar and also to protect them in their
possession and enjoyment of the lease-hold property. The
only defence that was put up by the State of Bihar before
the High Court of Patna was that the petitioners before the
Patna High Court had defaulted in the payment of rents and
royalties with effect from the date of vesting present
appellant, however, put up a strong defence on the following
grounds :-
(a) The original lease of 1919 did not give any mining
rights to Kumar Amardeyal Singh so that he could not grant a
valid mining lease in favour of Pran Kristo Chatterjee.
(b) In any event, even if the petitioners could trace any
title from the original lease of 1919, after the Bihar Land
Reforms Act of 1950 they became lessees under the State of
Bihar and their lease has been terminated by the Controller
of Mining Leases so that the State of Bihar was quite within
its rights to execute the leases in favour of the present
appellant and of Bharat Marble Company.
(c) In any event the appellant has been granted a mining
lease by the Government of Bihar and is now admittedly in
possession under that lease. Therefore, since the appellant
is now in possession and has raised a serious question
regarding the title of the petitioners, the appellant cannot
be thrown out by an order obtained in a Writ petition.
On these rival contentions the four cardinal issues that
arise for decision are
5
(1) Could Kumar Amardeyal Singh, the proprietor of Ladi
Estate, grant a mining lease ?
(2) What was the effect of the Bihar Land Reforms Act, 1950
upon the right, and title, if any, of the petitioners ?
(3) Assuming that the petitioners became lessees under the
State of Bihar by reason of the Bihar Land Reforms Act,
could the Controller of Mining Leases terminate their lease
?
(4) What is the effect of the possession that has been
enjoyed by the appellant since the grant of the mining
lease on 22 July 1965.
It will be more convenient if we dispose of issues Nos. 2
and 3 first.
For considering the effect of the Bihar Land Reforms Act,
1950 on the petitioners’ title we shall proceed on the
assumption that they were in enjoyment and possession of a
valid mining lease which had been originally granted by
Kumar Amardeyal Singh in 1919. Sec. 10 of the said Act
which deals with subsisting leases of mines and minerals is
in the following terms:-
10. Subsisting leases of mines and minerals.-(1)
Notwithstanding anything contained in this Act, where
immediately ’before the date of vesting of the estate or
tenure there is a subsisting lease of mines or
minerals comprised in the estate or tenure or
any part thereof, the whole or that part of
the estate or tenure comprised in such lease
shall, with effect from the date of vesting,
be deemed to have. been leased by the State
Government ,to the holder of the said
subsisting lease for the remainder of the term
of that lease, and such holder shall be en-
titled to retain possession of the lease-hold
property,.
(2) The terms and conditions of the said lease by the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
State Government shall mutatis mutandis be the same as the
terms and conditions of the subsisting lease referred to in
sub-section (1), but with the additional condition that, if
in the opinion of the State Government the holder of the
lease had not, before the date of the commencement of this
Act, done any prospecting or development work, the State
Government shall be entitled at any time before the expiry
of one year from the said date to determine the lease by
giving three months’ notice in writing:
Provided that nothing in this sub-section shall be deemed to
prevent any modifications being made in the
6
terms and conditions of the said lease in accordance with
the provisions of any Central Act for the time being in
force regulating the modification of existing mining leases.
(3) The holder of any such lease of mines and minerals as
is referred to in sub-section (1) shall not be entitled to
claim any damages from the outgoing proprietor or tenure-
holder on the ground that the terms of the lease executed by
such proprietor or tenure-holder in respect of the said
mines and minerals have become incapable of fulfilment by
the operation of this Act."
As the lease in favour of the petitioners was subsisting on
the date of vesting of the Ladi Estate, the lease, with
effect from the date of vesting, became nationally a lease
granted by the State Government to the petitioners for the
remainder of the term of that lease and the petitioners
became entitled to retain. possession of the lease-hold
property. There can be no manner of doubt that the Bihar
Land Reforms Act, 1950 could not have put an end to the
title of the petitioners. The only effect of that Act was
this, that instead of being lessees under Kumar Amardeyal
Singh and his successors, the petitioners became lesses
directly under Government on the same terms and conditions
on which the original lease had been granted to their
predecessor in-interest by Kumar Amardeyal Singh. The
statute itself is very clear on this point; the position
has, however, been reaffirmed by a decision of this Court in
the Bihar Mines Ltd. v. Union of India.(1)
The next issue that we have to deal with is as to the
question whether the order dated 28 September 1959 of the
Controller of Mining Leases modifying the petitioners’ lease
under the registered document of 1919 and directing that the
said lease would terminate on 20 September 1961 was valid
and effective in putting an end to the lease in September,
1961. The appellant sought to rely on this order be-fore
the High Court. But this also is a very lame stick on which
the appellant relied. A Division Bench of the Patna High
Court has held that the order of the Controller of Mining
Leases was invalid and of no legal effect whatsoever. This
finding has been confirmed by this Court in the Bihar Mines
Ltd. v. Union of India(") where it has been held that it is
not the effect of Sec. 10 of Bihar Land Reforms Act that a
subsisting lease continues under the Government with the
Government substituted as the lessor in place of the
original lessor. It has further be-en held that Sec. 10 in
effect creates a new statutory lease which comes into
existence on the date when the estate is vested in
Government.
(1) AIR 1967 S.C. 887.
7
We now come to consider issue No. 1 as to the competence of
Kumar Amardeyal Singh to grant a mining lease. A copy of
the original registered document of 11 July 1919 IV which
Kumar Amardeyal Singh is reported to have granted the mining
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
lease in favour of Pran Kristo Chatterjee, has been annexed
to the petition before the High Court. It is not anybody’s
case that the document of II July 1919 did not grant a lease
of mineral rights to the said Pran Kristo Chatterjee. What
is seriously challenged by the present appellant is the
title of Kumar Amardeyal Singh to give such a grant. We
shall deal with the items of evidence on which the
petitioners rely to establish the title of Kumar Amardeyal
Singh in his respect and also the objections of the
appellant to those items. The first evidence on which the
petitioners rely is a letter addressed by the Government of
Bihar in November, 1967 to the Deputy Commissioner of
Palamau and Daltonganj. The letter was on the subject of
ten applications of different parties for grant of mining
leases for limestone and dolomite in village Berma, P.O.
Daltoganj in the District of Palamau. The State Government
communicated an order to the Deputy Commissioner in the
fallowing terms
"Orders:In view of the judgment of the Supreme Court passed
in Civil Appeal Nos. 172-174 of 1963 in Bihar Mines Ltd. v.
Union of India and others, M/s. Quamruddin and Sons are
alone entitled to remain in possession of the area in
question for the period mentioned in the lease deed granted
in their favour by the ex-proprietor of Ladi Estate. The
area applied for by the aforesaid applicants are, therefore,
not available for settlement. The applications are
accordingly rejected.
By order of the Governor of Bihar
Sd/- C. P. Singh Deputy Secretary to Government".
The argument made on behalf of the petitioners is, more or
less on the following lines. As a result of a Supreme Court
decision, Government recognised in 1968 the competence. of
the exproprietor of Ladi Estate to grant mining leases. it
was cause there was already an existing lease granted by the
ex-proprietor of Ladi Estate in the area concerned that
Government ordered the Deputy Commissioner that the area was
not available for settlement with the various applicants for
mining lease mentioned in that letter. This, it is argued,
is a clear recognition by the State of Bihar of the
competence of Kumar Amardeyal Singh to grant, as proprietor
of Ladi Estate, mineral leases to others. Incidentally, one
of the applicants who was refused mining lease as a
consequence of that order, happens to be M/s. Bharat Marble
Company.
8
Therefore, it is argued, neither the State nor the appellant
can now be allowed to resile from this position. The
appellant meets this point by saying that the appellant who
has been graned a lease by the Government of Bihar in July
1965 cannot be bound by an admission made by Government in
November, 1967. No estoppel as against a lessee can arise
from any admission made by the’ lessor after the lease has
been granted.
The petitioners next rely on (i) a copy of Register ’D’ in
respect of village Adar, P.O. Daltonganj appertain in to
Touzi No. 130 as well as (iii) another copy of Register of
village Gore appertaining to Touzi No.-161 to establish that
Kumar Amardeyal Singh was a proprietor and not merely a
jagirdar. It is contended on behalf of the petitioners that
once the status of Kumar Amardeyal Singh as a proprietor is
established there can be no question that he must also have
been the proprietor of the underground mineral rights. For
the proposition that the right of property of zemindars or
proprietors extends to sub-soil minerals of the land held by
them, the petitioners rely on the authority of a decision of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
this Court in the Lodna Colliery Company (1920) Ltd. v.
Bhola Nath Roy(1) in which Raghubar Dayal J. delivering the
judgment of this Court made the following observation
"We are, therefore, of opinion that the right of property of
the persons with whom resumed invalid Lakhraj land had been
settled being the same as of the zemindars, extends to the
sub-soil minerals of the land held ’by them."
In the same case after referring to the preamble to
Regulation II of 1973, Raghubar Dayal J. observed:
"It is thus clear from the above declarations that the
zemindars, the proprietors of estates, were recogNIsed to be
the proprietors of the soil........ The right of the
zemindars to the sub-soil minerals under their land follows
from their being proprietors of the soil and has been
recognised in a number of cases between the zemindars and
persons holding land under a tenure from
them."
It is argued on behalf of the petitioners that the extracts
from Register ’D’ prove that Kumar Amardeyal Singh was
really a proprietor of Ladi Estate though he has been
described in some documents as ’jagirdar. It is contended
on the authority of the Supreme Court decision _just cited
that all zemindars as proprie-
(1) AIR 1964 S.C. 918.
9
tore of revenue-paying estates have rights over underground
minerals and are entitled, therefore, to grant a lease in
respect of’ those rights.
The learned Solicitor-General appearing on behalf of the
appellant countered this plea of the petitioners by sayin,
that entries in Register ’D’ can never be conclusive as to
title. Our attention was drawn to Sec. 4 of the Land
Registration Act, 1876 which though a Bengal Act (18 of
1876) is, the Act applicable to Bihar. Sec. 4 of that Act
describes the various registers which the Collector, of
every district has to prepare and maintain. Register ’D’ is
described in that Section as an intermediate register of
changes affecting entries in the general and mouzawar
register. The Land Registration Act mentions- the purposes
as well as the contents of the four registers mentioned in
Sec. 4. The intermediate register called Register ’D’ it
appears, is kept for the purpose of recording all changes
effected in the entries which stand in the other three
registers, namely Register ’A’ of revenue-paying lands,
Register ’B’ of revenue-free lands as well as the Mouzawar
Register ’C’ of all lands, revenue-paying and revenue-free,
so that by a reference to Register ’D’ correct upto-date
information as to Registers ’A’, ’B’ and ’C’ on all points
recorded therein may be obtained at any time. The names and
addresses of the proprietors of every estate which comprises
lands situate in a district are to be found in Register ’A’.
It is clear therefore that.Register ’D’ will ordinarily show
changes in the names of proprietors which are to be posted
in Register ’A’ as a result of mutation proceedings.
Ordinarily, a proprietor will take good care to have his
name registered under the Land Registration Act in the
Collectoes registers for, otherwise, he cannot be entitled
to claim rent from his tenants since, under Sec. 78 of the
Land Registration Act no one is bound to pay rent to any
person claiming such’ rent as proprietor or manager of an
estate unless his name is registered under the Act. All the
same, even when a name is posted in. a register as
proprietor as a result of a mutation proceeding the person
whose name is posted cannot claim that lie automatically
establishes his title as proprietor of the estate concerned.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
In Nirman,Singh & Ors. v. Lal-Rudra Partab Narain
Ors. (11) the Judicial Committee of the Privy Council held
that proceedings for the mutation of names are not judicial
proceedings in which title to and proprietary rights in
immovable property can be determined. The Privy Council
further held that mutation proceedings are in the nature of
fiscal enquiries’ instituted in the interest of the State
for the purpose of ascertaining which of several claimants
for the occupation of certain denomination of immovable pro-
perty may be put into occupation of it with greater
confidence that
(1) 53 T.A. 220.
10
the revenue for it will be paid. The Privy Council clearly
held that revenue authorities have no jurisdiction to
pronounce upon the validity of claims of title so that
orders in mutation proceedings cannot be treated as
conclusive evidence of proprietary title. The learned
Solicitor-General relied also on a decision of this Court in
Sri Marudeswarar Temple v. Dhanalakshmi Ammal and Ors.(1)
where this Court held that a certified copy of the revenue
extract showing a land as entered in the name of a
particular temple is not conclusive of the right of the
temple to the land, for a revenue, record merely shows that
the Government regards the person in whose name the land is
entered as responsible for payment of revenue. "Such an
entry may, prima-facie, be good evidence of possession and
even of the right to hold the land, but in law it is not
conclusive."
On the strength of these authorities the learned Solicitor
General contended that the entries in the Register ’D’ on
which the petitioners rely cannot be taken as conclusive
evidence as to the title of Kumar Amardeyal Singh. In our
opinion, there is considerable substance in this contention
of the learned Solicitor General. It is true that the
extracts from Register ’D’ are strong prima-facie evidence
in support of the petitioner’s claim that Kumar Amardeyal
Singh was a proprietor of Ladi Estate but it is not possible
to treat this evidence as conclusive on the point.
We now come to the last issue as to the effect of the posse
ssion enjoyed by the appellant since the grant of the
mining lease to the appellant by the Government of Bihar on
22 July 1965. As for the fact of possession by the
appellant of the area covered by the mining lease it appears
that the petitioners have admitted that fact before this
Court in connection with the appellant’s application for
stay of the order dated 17 September 1971 of the Patna High
Court. In its petition before this Court the appellant in
paragraph 5 and 6 states as follows
"5. That after the termination of the alleged lease in
favour of Respondents Nos. 1, 2 and 3 w.e.f. September 19,
1961 the State Government notified the area under Rule 58
of the Mineral Concession Rules, 1960 to make a fresh
grant. Notification was published in Official Gazette on
11-12-1961. The appellant in response to the said
notification applied for the area. Mr. M. G. Rungta and Mr.
T. P. Rungta, father and son also applied separately for the
area. The mining lease for the area was finally granted by
the Government of Bihar to the appellant by order dated
22-7-1965 under the
(1) Civil Appeal No. 236 of 1961: Judgment delivered on 10
January, 1963.
11
Mineral Concession Rule, 1960 and the mining lease was
executed in favour of the appellant on 17-10-1966.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
6. After having got the possession of the area, the
appellant commenced preliminary mining operations in the
area. The appellant has so far invested over Rs. 1,50,000
on machinery and equipment, etc. The iron ore (magnetite)
extracted from the mines are being directly
used by the appellant itself in its coal
washeries for beneficiation of the coal for
use in steel plants."
In reply to these averments of the appellant, the
petitioners have more or less admitted the appellant’s claim
of possession. In paragraphs 4 and 5 of the affidavit
filed, on their behalf in reply to the appellant’s petition,
the petitioners merely say (i) that the. allegations
contained in paragraphs 5 and 6 of the appellant’s. petition
are matters of record and (ii) that they do not admit the
allegations and put the appellant to strict proof thereof.
In paragraph 7 of the same affidavit, however,, the
petitioners make a positive statement in the following
language:-
"I say that as far as I am aware the petitioner has only
commenced the prospecting operations in the same area and
has not commenced any real mining operation".
In other words, the petitioners admit that the appellant has
already been carrying on prospecting operations in the
disputed area which is impossible unless the appellant has
been in possession of the land. It is also significant that
in their writ application before the High Court the
petitioners have asked for a rule nisi calling upon the
appellant to show "why, if the circumstances so require, the
petitioners be not restored into possession’ of the disputed
lands. It seems clear to us that the appellant had actually
been put into possession of the land in respect of which
Bihar Government gave the appellant a mining lease and also
that the appellant has been carrying on mining opinions in
that area. According to the appellant the fact that it is in
possession of the disputed land should’ be a strong reason
for not throwing the appellant out of possession of the
disputed land in a summary proceeding like a Writ petition.
It was argued that since the appellant has raised a serious
question as to the validity of the petitioners’ title and
since it has proved its present possession of the disputed
lands, the appellant should not be disturbed without
adjudication of the question of’ title in a proper action.
The learned Solicitor-General relied strongly on the
decision of this Court in Sohan Lal v, the Union of
India("). In that case where a serious dispute on questions
of fact between the parties was raised and particular the
question.-
(1) [1957] S.C.R. 738.
12
arose as to whether one of the parties had acquired any
title to the .property in dispute, this Court held that
proceedings by way of ,a writ were not appropriate in a case
where the decision of the ,Court would amount to a decree
declaring a party’s title and ordering restoration of
possession. This Court further held that the proper remedy
in such a case is by way of a title suit in a civil court
and the alternative remedy of obtaining relief by a writ of
mandamus or an order in the nature of mandamus could only be
bad if the facts were not in dispute and the title of the
property in dispute was clear.
The petitioners sought to rely on the case of Mohd. Hanif
v. State of Assam(,.’) in support of their proposition that
since they have adduced sufficient evidence to show at
least prima-facie title in respect of the disputed lands
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
they are entitled to be protected from ouster from their
lands by an executive action on the part of the State
Government. In the case of Mohd. Hanif (1) the Government
of Assam sought to resume certain lands which had been
,originally settled by the British Crown with, one Capt. S.
N. Manley who had sold his right and title in the land to
the predecessor in-interest of Mohd. Hanif. Mohd. Hanif
filed an application in the Assam High Court under Art. 226
of the Constitution of India. The High Court dismissed
Mohd. Hanif’s petition on the ground that his petition
raised disputed questions of title and that he should
therefore be relegated to a suit in the civil court. Mohd.
Hanif appealed against the decision of the High Court. to
his Court which allowed the appeal and held that the object
of a proceeding under Art. 226 is to ensure that the law of
the land is implicitly obeyed and that various authorities and
tribunals act within the limits of their respective
jurisdiction. This Court further held that though
ordinarily in a proceeding under Art. 226 of the
Constitution the High Court is not concerned with the mere
determination of the private rights of the parties, the
Article provides a remedy against the violation of the
rights of the citizens against the State or the statutory
authority.
The case of Mohd. Hanif (1) is, in our opinion, easily
distinguishable from the instant case. That was clearly a
case of exeexecutive interference with the possession of the
petitioner Mohd. Hanif. Here, however, the petitioners do
not have possession of the mineral rights for the protection
of which they invoked the High Court for assistance in their
writ petition. If the petitioners have to be given any
relief in the instant case, it would be necessary to
disturb the existing possession of the appellant. No
support for ,such an order can be found in the decision in
Mohd. Hanifs case.
(1) [1969] 2 S.C.C. 782.
13
Having regard to the view that we have taken of this case we
cannot uphold the decision of the Patna High Court. We
notice that the Patna High Court in more than one place in
its judgment has used the expression "Prima-facie" in
describing the state of affairs in connection with the right
of Kumar Amardeyal Singh to grant a lease in respect of
mineral rights. Apparently, the High Court felt that on the
materials before it, it could not come to the conclusion
that the title of the petitioners had been established
conclusively. The main foundation of the petitioners title
was the mining lease given by Kumar Amardeyal Singh in
1919. The party who is now in possession of the disputed
lands has thrown doubt about the competence of the Kumar
Amardeyal Singh to grant such a lease. The petitioners have
failed to produce any clear, conclusive and unimpeachable
documentary evidence in support of their contention that
Kumar Amardeyal Singh was "proprietor" who could have
granted such a lease. That is why the High Court did not
come to a definite conclusion regarding the title of the
petitioners and remained content by saying that the
petitioners had shown prima-facie title. These are not
circumstances in which,, in our opinion, the petitioners can
be put into possession by the High Court by displacing the
appellant.
In our opinion, therefore, the appellant should succeed in
this appeal. Accordingly, we set aside the judgment and
order dated 17 September 1971 of the Patna High Court and
allow the appeal. In the peculiar facts and circumstances
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
of this case we direct that the parties should bear their
own respective costs..
Before parting with the case, however, we ought to make it
clear that this judgment is not to be taken as a
determination of the question of title of the
petitioners. We cannot disregard the fact that ever since
the grant of the mining lease by Kumar Amardeyal Singh in
1919 the petitioners and their predecessor-in-interesthave
actually enjoyed the title-. Thy even gave a sub-lease to
Madan Gopal Rungta so that until a new lease was granted
by the Government in favour of the appellant the petitioners
were in possession of the disputed lands either directly or
constructively through Madan Gopal Rungta. It is quite
likely that when the Bihar Land Reforms Act came and
the Controller of Mining leases passed an order cutting
short the duration of the lease of the petitioners, the
petitioners were not so alert as to asserting their rights
against
14
the Government of Bihar who found the field clear to give ’a
fresh lease in favour of the appellant. The fact remains
that the petitioners have shown clear possession of the
disputed lands from 1919 to 1965 and they have also shown
strong prima-facie title. Therefore, we are not prepared to
deprive the petitioners of an ,opportunity to prove their
title in a suitably framed suit.
Appeal allowed.
S.B.W.
15