Jethmul Bhojraj v. Harbans Narain Singh — 1954 DIGILAW 78 (PAT)

Judgment 1. There is a triangular fight in this case. The dispute relates to certain mines, and there are three sets of claimants of these mines. Firm Jethmull Bhojraj (petitioner No. 1) is one of the claimants. Petitioner No. 2 is one of the partners of the firm and petitioner No. 3 is its servant. Opposite party Nos. 16 to 21 are other servants of this firm. The second set of claimant is the Indian Mica Supply Co. Ltd., opposite party No. 22. Opposite party Nbs. 1 to 7 are the servants of opposite party No. 22 and they are represented by the Advocate General. The third set of claimants consists of opposite party Nos. 8 to 13 who are represented by Mr. Aswini Kumar Roy. 2. On 1-3-1954, a proceeding under S. 145, Criminal P. C., was drawn up with respect to these mines in which opposite party Nos. 1 to 7 are first party, petitioner No. 3 and opposite party Nos. 16 to 21 are the second party and opposite party Nos. 8 to 15 are the third party. A petition in revision (Cri. Revn. No. 264 of 1954 (Pat) (A)) was filed in this Court for quashing the proceeding, but that was dismissed on 30-4-1954. Along with the proceeding drawn up on 1-3-1954, the learned Sub-divisional Officer also passed on the same date an order of attachment of the mines, which are the subject-matter of that proceeding, under S. 145 (4), Criminal P. C. The actual attachment of the various mines in dispute was made on the 3rd and the 4th of March, 1954. Petitioner No. 1, on 5-3-1954, made an application for making arrangements for working out the mines by settling the same with the firm on such terms as the Court might consider it proper. That application was rejected by an order dated 24-3-1954, and the present revision application is directed against that order. 3. Before dealing with the case of the parties, a brief statement of facts may, perhaps, have to be given. There is no controversy on these facts between the parties. Gadi Manjhiladih consists of, eighteen villages including those villages in which the disputed mines lie. Rai Sahib Sundermull Rajgarhia, founder of the Indian Mica Supply Co. Ltd. (opposite party No. 22), took mining leases of the entire Gadi Manjhiladih, in the year 1915, on a rental of Rs. There is no controversy on these facts between the parties. Gadi Manjhiladih consists of, eighteen villages including those villages in which the disputed mines lie. Rai Sahib Sundermull Rajgarhia, founder of the Indian Mica Supply Co. Ltd. (opposite party No. 22), took mining leases of the entire Gadi Manjhiladih, in the year 1915, on a rental of Rs. 258 /-, for a period of twenty years with a clause for renewal of the leases for another period of twenty years. Undisputedly, the mines have been opened, worked and developed by the Indian Mica Supply Co. Ltd. at a huge cost. In the year 1928 the estate of proprietors, who had granted leases to Rai Sahib Sundermull Rajgarhia, was taken over under the management of the Chotanagpur Encumbered Estate. This was during the subsistence of the mining leases referred to above. Even then, by agreement between Rai Sahib Sundermull and the manager of the Chotanagpur Encumbered Estate, a fresh lease was created on 1-4-1928, in respect of the whole Gadi Manjhiladih at a rental of Rs. 3000/- for a period of fifteen years in favour of Sri Madanlal, son of Rai Sahib Sundermull, who had died by that time, There was in that lease also a clause of renewal of the lease for another period of twenty years on the original Rent of Rs. 258/- per year. In the year 1935 opposite party No. 22 took a sub-lease of the mines from Rai Sahib Sundermull, and since then it had been in possession of the mines doing mining operations, and developing and starting mines in Gadi Manjhiladih. The lease executed by the manager of the Chotanagpur Encumbered Estate was to expire on 31-3-1943, and, before that date, Madanlal wanted to have his lease renewed as stipulated between the parties. The estate of proprietors of the mines in question was still under the management of the Chotanagpur Encumbered Estate, but the estate was going to be released from its management soon after. The proprietors objected to the renewal of the lease in favour of Madanlal and, therefore, the manager of the Chotanagpur Encumbered Estate put off the renewal of the lease till the estate was to be released. On 15-4-1943, therefore, Madanlal filed Title Suit No. 7 of 1943 in the Court of the Subordinate Judge at Hazaribagh for specific performance of the contract for renewal of the lease. On 15-4-1943, therefore, Madanlal filed Title Suit No. 7 of 1943 in the Court of the Subordinate Judge at Hazaribagh for specific performance of the contract for renewal of the lease. That suit was dismissed on 27-1-1945, and Madanlal filed a first appeal, No. 41 of 1945, in this Court, which is still pending. In the year 1949 the Mineral Concession Rules were made by the Central Government under S. 5, Mines and Minerals (Regulation and Development) Act, 1948 (Act No. 53 of 1948), which, amongst other things, required the mining leases to be executed in accordance with those rules. In the same year the proprietors of the estate, which had already been released from the management of the Chotanagpur Encumbered Estate, formed into a mining syndicate named Manjhiladih Mining Syndicate, and applied for miners license. They were granted such license in respect of fifteen out of the aforesaid eighteen villages. Their license, could not be renewed as they did not pay the renewal fee. On 2-11-1953, for the first time, petitioner No. 1 came in the picture and obtained mining leases from the proprietors of 11 dams and odd in certain specific plots containing the disputed mines, and, on 9-11-1953, an application was made on its behalf for endorsing the mines in question in its mica miners license. On 16-11-1953, the inspector of mica accounts recommended for the endorsement being made in favour of the firm. On 25-11-1953, opposite party No. 22 took lease from the proprietors of 13 annas and odd of the various mines including the disputed mines for a period of twenty years with retrospective effect from 1943. The contesting opposite parties objected to these mines being endorsed in miners license of petitioner No. 1. While the question of endorsement of the mines was still pending before the Mica Controller petitioner No. 1, on 20-12-1953, fixed up boilers, compressure and other tools and machineries on the aforesaid mines. That led to a clash between the parties and on the very next day, that is, on 21-12-1953, a proceeding under S. 144, Criminal P. C. was drawn up restraining all the parties from going upon the land and directing them to show cause against that order. That led to a clash between the parties and on the very next day, that is, on 21-12-1953, a proceeding under S. 144, Criminal P. C. was drawn up restraining all the parties from going upon the land and directing them to show cause against that order. The parties showed cause, and on 16-1-1954, opposite party No. 22 and the other contesting opposite party put in a petition before the Mica Controller informing him that there was a dispute between the parties over the possession of mines in question and a proceeding under S. 144, Criminal P. C., had already started. The Mica Controller, however, on 25-1-1954, without considering the effect of the proceeding under S. 144, Criminal P. C., and the fact that all parties had been restrained by the Sub-divisional Magistrate from going upon the land, passed an order for endorsing these mines on the mica miners license of petitioner No. 1. On 1-2-1954, the order under S. 144, Criminal P. C., was made absolute against petitioner No. 1 and vacated against the other parties. Petitioner No. 1 went in revision against that order to the Deputy Commissioner who admitted the application and passed an order for stay of further proceedings. The parties put different interpretations on the stay order and there was again likelihood of their coming into clash. In those circumstances on 5-2-1954, the learned Sub-divisional Magistrate started proceeding under Ss. 107 and 117(3), Criminal P. C., directing the parties to execute ad interim bonds of Rs. 500/- each with two sureties of the like amount and to show cause as to why they should not be asked to execute such bonds for a period of one year for maintaining peace. As the force of the order passed under S. 144, Criminal P. C., was only till 18-2-1954, petitioner No. 1 sent its men to mines again on 19-2-1954, to start the mining work. That again led to a dispute between the parties, and on 27-2-1954, the police submitted a report for action under S. 145, Criminal P. C. Accordingly, on 1-3-1954, as already stated, a proceeding under S. 145 of the Code was drawn up and the mines in question were attached under sub-s. (4) of that section. 4. Mr. Aswini Kumar Roy appearing for opposite party Nos. 4. Mr. Aswini Kumar Roy appearing for opposite party Nos. 8 to 13 has taken a preliminary objection that the order in question is an administrative order and no revision lies to this Court. In support of his contention he has relied on two cases of the Madras High Court. In - Srinivasa Pillay v. Sathayappa Pillay, 14 Ind Cas 759 (Mad) (B) an order of attachment was passed under S. 145(4), Criminal P. C., and a receiver was appointed to take charge of the attached property. Sankaran Nair, J., held that it is an administrative order passed for the management of the property which has been attached. But, in the very next sentence his Lordship has observed that the right to attach carries with it the right to take necessary steps for its custody and management. It is not contended that the order of attachment is an administrative order, and in my opinion, therefore, the right to take necessary steps for the management of the property attached also cannot be said to be an administrative order so as to exclude the possibility of interference by the High Court under any circumstance. This case came to be considered by a Bench of this Court in - Nandkishore Prasad v. Radhakishun, AIR 1943 Pat 124 (C). Though the observation of Sankaran Nair, J., that it is an administrative order passed for the mangement of the property which is attached, was before their Lordships, they did not hold that a revision application did not lie in the High Court against that order; rather it appears from the observation of Chatterji, J., who delivered the judgment that such an order partakes the character of the order of attachment. His Lordship had observed : "But I have no doubt that Sankaran Nair, J., is right when he says that the right to attach carries with it the right to take the necessary steps for its custody and management." In - Zamindar of Devarakota v. Ramaswamy, AIR 1948 Mad 234 (D), no doubt it has been definitely laid down following the case of 14 Ind Cas 759 (Mad) (B) that the order of the Magistrate concerning the management of the attached property under S. 145(4), Criminal P. C., is an administrative order and no revision lies to the High Court against that order. But in view of the decision in 14 Ind Cas 759 (Mad) (B) on which reliance was placed in this case that the right of the order of attachment carries with it the right to take the necessary steps for management, I am unable to agree with the view taken in this case. There is another Bench decision of this Court in - Mt. Lachmi Kuar v. Gajadhar Prasad, AIR 1927 Pat 393 (E) in which an order of attachment was passed under S. 146, Criminal P. C., and the attached property was settled with one of the parties to the proceeding by an order of the District Magistrate against which a revision application was filed in this Court, and it was contended that the order for management of the attached property was an administrative order with which this Court will not interfere. It was held that the question was not one of want of jurisdiction but of the proper exercise of discretion by this Court, which, in the exercise of its revisional jurisdiction should not lightly interfere with such orders. The argument that it is an administrative order was not, therefore, accepted by this Court. 5. In - Prem Kuar v. Benarsi Das, AIR 1933 Lah 409 (P) the Magistrate had attached the property through the police who were put in possession. It was held in that case that the right to attach property carries with it the right to take necessary steps for its custody and management and that a receiver can be appointed for the purpose under S. 145, Criminal P. C., just as he can be appointed under S. 146, Criminal P. C., though in the former case he acts merely as an agent of the Court and has not all the powers which are specifically conferred by S. 146, Criminal P. C., upon a receiver appointed under that section. Referring to this case Mackney, J., in - San U Maung v. Maung Lu Gale, AIR 1938 Rang 88 (G) observed : "Whilst I think it advisable not to employ the term "receiver" owing to the possibilities of misunderstanding that may arise, yet I think that it is clear that if the Magistrates attachment is to be effected he must put some person into possession of the property, who will have authority to maintain his possession." In - Paizur Rahman v. Sheikh Ladley, 42 Cal WN 351 (H), a Bench decision of the Calcutta High Court, Biswas, J., who delivered the judgment observed as follows : "Strictly speaking, it is a matter which is arguable whether or not a receiver can be appointed in any proceeding under Chap. 12 except under S. 146. It seems to me, however, that even though a receiver may not be appointed consequent on an attachment made under the last proviso to sub-s. (4) of S. 145, a Magistrate is competent to make suitable arrangements for the custody of the property attached." On consideration of most of the authorities referred to above, Chatterji, J., with whom Manohar Lall, J., concurred, held in AIR 1943 Pat 124 (C) that a Magistrate, attaching the subject of dispute under S. 145 (4), Criminal P. C., is competent to make suitable arrangements for the custody of the attached property. 6 On consideration of the various authorities referred to above, the position seems to be clear that the right of the Magistrate to attach property in dispute under S. 145 (4), Criminal P. C. includes his right to make suitable arrangements for the management of the attached property. An application in -revision undoubtedly lies, and this position has not been challenged by the learned Counsel appearing for the opposite party, against an order of attachment passed by a Magistrate under S. 145 (4), Criminal P. C. In my opinion, therefore, a revision application lies to this Court even against an order of a Magistrate with regard to the management of the property attached under S. 145 (4) of the Code. The preliminary objection, therefore, fails. 7. It has been argued on behalf of the petitioners, and the point has been conceded by Mr. Aswinikumar Roy appearing for opposite party nos. The preliminary objection, therefore, fails. 7. It has been argued on behalf of the petitioners, and the point has been conceded by Mr. Aswinikumar Roy appearing for opposite party nos. 8 to 13, that apart from the revisional power under the Code of Criminal Procedure, this Court has power of superintendence over all courts and tribunals within this State under the Constitution of India, and the order in question, could be revised by this Court under this power of superintendence. 8. The learned Subdivisional Magistrate has rejected the prayer of petitioner no. 1 for settlement of the mines with him on the grounds that, in view of the serious dispute for possession, it would be hardly advisable to allow the applicant to take settlement of the mines to work them as there may be serious complications later, that the possibility of the applicants working the mines in such a way as to cause permanent damage to them cannot be over-ruled and that the mines not having been worked for a very long period and no actual working having been started by the applicant, there was no urgency for making the settlement. It has been contended on behalf of the petitioners that none of the aforesaid grounds is tenable, and that the working of the mines should not have been stopped by an order of attachment without making any arrangement for their working. It is contended that it is to the interest of all parties concerned that the working of the mines should not be stayed. The argument is that to leave the mines unworked would amount to putting the petitioners or any successful party to a heavy loss and will also put the Government to loss of revenue in the form of royalty or sale tax and the nation to the loss of valuable minerals like mica by hindering production thereof. The argument, though attractive, appears to be without any merit. It is admitted in this case that the mines are lying unworked, or without any operation, since at least from 1951. It is also admitted that even the petitioners have done nothing more towards the working of the mines than to merely clean the sites, install the mechineries and erect necessary huts during the period while the parties were at least disputing the endorsement of the mines in the miners license of petitioner no. 1 before the Mica Controller. It is also admitted that even the petitioners have done nothing more towards the working of the mines than to merely clean the sites, install the mechineries and erect necessary huts during the period while the parties were at least disputing the endorsement of the mines in the miners license of petitioner no. 1 before the Mica Controller. The unworked product of the mines will remain in deposit in the mines till they are worked out, and it cannot be said, as in the case of land yielding yearly products, that if the mines are not worked for a certain period, the product of that period will be lost. The material is in deposit in the mines and the product will come out when it is worked without there being any loss to it. In view of this fact, the learned Sub-divisional Magistrate was of the opinion that there was no urgency for making settlement of the mines. It cannot be said that the view of the Sub-divisional Magistrate is arbitrary or unreasonable so as to require interference by this Court. 9. It has been argued on behalf of the contesting opposite parties that the learned Sub-divisional Magistrate was perfectly justified in holding that settlement of the mines with the petitioners will cause serious complications. The contention of the Advocate-General is that in the proceeding under S. 145, Criminal P. C., the question that has to be decided by the Magistrate is as to who was in possession on the date of the order. If the mines are settled with the petitioners and they are allowed to work them, they may create evidence to show that they were in possession of the mines at the date of the drawing up of the proceeding, though such evidence would not be available to them if they are kept out of possession. There seems to be much substance in this contention. There seems to be much substance in this contention. If the petitioners are permitted in any capacity to work out the mines, they will have to take necessary steps for their working, and it will be very difficult for the Court at the time of the hearing of the case to find out as to which steps were taken subsequent to the settlement and how far the petitioners had proceeded with their work before the settlement so as to prove their possession on the date of the drawing up of the proceeding. 10. The observation of the learned Subdivisional Magistrate that the possibility of applicants working the mines in such a way as to cause permanent damage to them cannot be overruled is also not without substance. No doubt, under the Mines and Minerals (Regulation and Development) Act, 1948 (Act No. 53 of 1948), the rules made thereunder and the Bihar Mica Act, 1947 (Bihar Act 10 of 1948), sufficient safeguards have been provided against damaging or destroying a mine by the person who is working it out. But the possibility of the man in possession to cause damages notwithstanding all those safeguards cannot be absolutely ruled out. 11. It has also been contented on behalf of the contesting opposite parties that law does not permit the settlement of the attached mines with a party to the proceeding. In -AIR 1927 Pat 393 (E), in which the disputed village was attached under S. 146, Criminal P. C., and, thereafter, settled with persons who were parties to the proceedings, it was held that it was improper and against the elementary rule to settle the attached property with a party to the proceedings, and this Court interfered in revision with such order. The decision is clear on the point and it is not, therefore, proper that the mines should be settled with the petitioners. There are certain observations in that case, however, on the basis of which it is contended that in certain special circumstances settlement can be made of attached property with a party to the proceedings. The decision is clear on the point and it is not, therefore, proper that the mines should be settled with the petitioners. There are certain observations in that case, however, on the basis of which it is contended that in certain special circumstances settlement can be made of attached property with a party to the proceedings. Das, J., (as he then was) in the Course of his judgment observed that it is a well settled rule that as a matter of principle a person ought not to be appointed a receiver who has shown a partiality for one of the parties and that a party to the action should not be appointed unless by consent or unless there are special circumstances justifying his appointment in preference to others. James, J., in his concurrent judgment observed : "The only ground on which resettlement with these thikadars could have been justified would have been that of unavoidable necessity". In the present case it has been argued that under the law nobody can work out a mine unless that mine is endorsed in his miners license. It is admitted that the mines in question have been endorsed in the miners license of petitioner no. 1 and, therefore, nobody else except petitioner no. 1 can work out these mines, and that is a ground for preferring petitioner no. 1 for making settlement of the mines. But, as already stated, it has been found that there is no urgency for the settlement of those mines, and, therefore, the rule of unavoidable necessity does not apply. So far as the endorsement of the mines in the miners license of petitioner no. 1 is concerned, I do not think that petitioner no. 1 is justified in being given settlement of the mines in the circumstances of this case. It has already been shown as to how hurriedly petitioner no. 1 obtained the endorsement and how the Mica Controller made the order of endorsement during the pendency of the proceedings under S. 144, Criminal P. C., between the parties. Under sub-sec. 1 is justified in being given settlement of the mines in the circumstances of this case. It has already been shown as to how hurriedly petitioner no. 1 obtained the endorsement and how the Mica Controller made the order of endorsement during the pendency of the proceedings under S. 144, Criminal P. C., between the parties. Under sub-sec. (1) of S. 6, Bihar Mica Act, 1947 (Bihar Act 10 of 1948), as amended by the Bihar Mica Amendment Act, 1953 (Bihar Act 28 of 1953), the Controller can grant to a person a miners license or a dealers license on an application being made for that purpose, but he may refuse to grant such a license if the applicant is not in lawful possession of any mica mine. Under sub-sec. (6) of that section the Controller while granting a miners license under sub-sec. (1) of that section, has to endorse on the license the particulars of the mines in lawful possession of the licensee. From the facts stated above, it is clear that the petitioners had had no concern whatsoever with the mines in question prior to 2-11-1953, when, for the first time, petitioner No. 1 came in the picture and took settlement from the cosharer proprietor of 11 dams and odd. Soon thereafter, the proceeding for endorsement of the mines on the miners license was taken up by petitioner no. 1 before the Mica Controller, and objections were raised before the Controller with regard to the lawful possession of petitioner rib. 1 over the mines in question. The Controller in spite of being apprised that there was a serious dispute between the parties with regard to possession, and actually a proceeding under S. 144, Criminal P. C., was drawn up against them, and all the parties were restrained from going over the mines, made the order for endorsement without giving any consideration to those facts. The circumstances show that the endorsement of the mines in question in the miners license of petitioner no. 1 may not be legal and bona fide. But, since the legality or otherwise of the aforesaid endorsement is not before me, I do not express my opinion about it, and the observation made by me with respect to that will not be binding on any one. 12. 1 may not be legal and bona fide. But, since the legality or otherwise of the aforesaid endorsement is not before me, I do not express my opinion about it, and the observation made by me with respect to that will not be binding on any one. 12. On consideration of the facts and circumstances of the case, I do not think that the order of the learned Subdivisional Magistrate requires any interference by this Court. 13. In the result the application fails and is dismissed.